Bangalore District Court
Spe:Cbi:Eow:Chennai vs Sri H.Manjunath S/O on 13 September, 2019
IN THE COURT OF LXXXI ADDL. CITY CIVIL AND SESSIONS
JUDGE, BENGALURU (CCH82)
:Present :
Sri RAMACHANDRA D. HUDDAR, B.Com., LLM.,
LXXXI ACC & SJ, Bengaluru City (CCH-82)
(Special Court exclusively to deal with
criminal cases related to elected MPs/MLAs
in the State of Karnataka)
Dated: This the 13th day of September, 2019
Spl. CC No. 342 / 2018
COMPLAINANT:- SPE:CBI:EOW:CHENNAI
(By Special Public Prosecutor)
V/s
ACCUSED:- 1. Sri H.Manjunath S/o
H.Malleshappa
Proprietor of
M/s. Sri Venkateshwara Transport
R/at: Shreya Sadana
2nd Cross, J.P.Nagar,
Bellary Road
Hospet, Karnataka-583 201
2. M/s. Zest Enterprises
Door No.169, Ward No.14,
L B colony,
Near old bus stand, Sandur,
Bellary, Karnataka
3. Sri Shivaraj.M S/o Malleseme
Shankarappa
R/at: Yealager street, 6th ward,
Main Bazar, Sandur,
Karnataka-583 119
4. Sri B.Chiranjeevi S/o K.Buddanna
R/o New Chapparadhalli,
Ward 14th, Sandur Town And Taluk,
Bellary, Karnataka.
2 Spl.CC.342/2018
5. Sri G Santhosh Kumar
S/o G.Giridhar
R/at: Ward 14th, LB colony,
Sandur Town And Taluk,
Bellary, Karnataka
6. M/s.Eagle Traders And Logistics
R/at: No.126/18, 1st Cross,
Nehru Colony,
Bellary Karnataka
7. Sri B.Nagendra S/o
Late B.Anjaneyulu
(partner of A6)
R/at: No.176, 1st Cross,
Nehru Colony,
Bellary, Karnataka
8. Sri Kuruba Nagaraj
S/o late K.Mallaiah
(Partner of A6)
r/at. 16th Cross,
Sir Guru Kottureshwara
Badawane,
Sri Rama Nilaya,
Thalur Road,
Bellary, Karnataka
9. Sri B.P.Anand Kumar @
Anand Singh
S/o Prithviraj Singh
R/at: K R Road, Ranipet,
Hospet, Bellary, Karnatka
10. Shri Shyamraj Singh @
Shyam Singh
S/o late B.S.Balaji Singh
R/at: Shree Balaji Sadan,
Plot No 8, Basaveswara Badavane,
Hospet, Bellary, Karnataka
11. Sri H.Noor Ahmed S/o
H.Peer Sab
R/at: Mubarak Manzil,
3 Spl.CC.342/2018
Contonment, Bellary,
Karnataka
12. Sri Mithyleshwar.J
S/o Late V.N.Jayaraam
Agent of M/s.Saantha Lakshmi
Jayaram Mines, R/at: No.49,
Vinag Mansion,
Contonment, Bellary,
Karnataka
13. M/s. Vinayaka Minerals
R/at: D.No.40, 22nd Ward,
Yoga Narasimha Nilaya,
Opp Vasavi High School,
Aravind Nagar, Hospet,
Karnataka
14. Sri A.Hanoorappa S/o
A.Gangappa
Shri Anjali Devi Nilayam,
Flat No 40, Aravind Nagar,
Ward No 22, Hospet
Karnataka
15. Sri Satya Narayana S/o
late P.V.Ranganath Rao,
R/at: Vinayaka Nilayam,
Aravind Nagar,
Ward No.22, Hospet,
Karnataka
16. Sri K.Seshagiri Chowdary
S/o K.Srihari Rao
R/at: Vinayaka Nilayam,
Aravind Nagar, Ward No 22,
Hospet, Karnataka
17. Sri Somanath G.Revankar (DEAD)
(ABATED)
18. Sri Maheshwar Babu Nayak
S/o Babu Pandurang Nayak
4 Spl.CC.342/2018
R/at: Dandebag, Aversa Village,
Taluk Ankola,
Uttara Kannada District,
Karnataka
Date of offence Around the year 2009, 2010
Date of report of offence 29.10.2013
Name of the complainant As ordered by the Hon'ble
Supreme Court of India in I.A.No.
189 in writ petition (Civil) No.562
of 2009 dt.16.9.2013 and
connected matters
Date of commencement of 27.11.2018
recording of evidence
Date of closing of evidence 12.07.2019
Offences complained of U/s.379, 411, 420 r/w 120(B)
Opinion of the Judge Accused are found not guilty
State represented by Learned Special Public
Prosecutor
Accused defended by Sri MDN, Adv for A1
Sri SHM, Adv for A2 to 5
Sri HMF, Adv for A6,8,13 to 16
Sri SBH, Adv for A7
Sri H.P., Adv for A9
Sri S.M., Adv for A10
Sri RLV., Adv for A11
Sri RVS., Adv for A12
Sri PNH., Adv for A18
(case against accused No.17
abated as dead)
JUDGMENT
This case has got its own history of registering a criminal case against accused persons as per the directions of Hon'ble Supreme Court of India.
2. PE/CBI/EOW: Chennai has submitted charge 5 Spl.CC.342/2018 sheet against the accused persons for the offences punishable under Sec. 120(B) r/w 379, 411, 420 of IPC and Sec.21 of MMDR Act 1957 and substantive offences thereof.
3. Brief and relevant facts as per the records are as under:-
The Hon'ble Supreme Court of India in WP (Civil) No.562/2009 on I.A.No.189 passed an order permitting the CBI to register criminal cases against those exporters who were enquired in the preliminary enquiry and who had exported iron ore more than 50,000 MT without valid permits and as recommended by the Central Empowered Committee (hereinafter referred to as 'CEC' for short) in its report dt.5.9.2012. Further it is directed by Hon'ble Supreme Court of India that the CBI is permitted to refer the matter with respect to the exporters who had exported less than 50,000 MTs and were not enquired into in the preliminary enquiry, to the Government of Karnataka for taking necessary action under the relevant laws as recommended by the CEC in its report dt.5.9.2012.
6 Spl.CC.342/2018 It is also directed by the Hon'ble Supreme Court of India that CBI was permitted to refer to the Government of Karnataka for taking further action under relevant laws with regard to both exporters who were enquired into in the preliminary enquiry who had exported less than 50,000 MTs of iron ore without valid permits as recommended by the CEC in its report dt.5.9.2012. This case is restricted to the extent of more than 50,000 MTs alleged to have been transported without valid permits.
4. Based upon the directions of Hon'ble Supreme Court of India the CBI/EOW; Chennai, by name Smt.Thenimozhli, the Superintendent of Police, registered the crime in case No.RC 19/E/2013/CBI/EOW dt.29.10.2013. By registering the case against accused persons for the offences under Sec.120B r/w 420, 379, 411, 427, 447 of IPC and Sec.13(2) r/w 13(1)(d) of prevention of Corruption Act, 1988 and Sec.21 r/w 4(1), 4(1)(A) and 23 of MMDR Act 1957 and also under Sec.24 of Karnataka Forest Act, 1963 set the criminal law in motion. Said FIR is marked as Ex.P.199.
7 Spl.CC.342/2018
5. Brief and relevant facts as set out in the prosecution papers leading to the case of the prosecution are as under:-
"As stated supra, Hon'ble Supreme Court of India as per the orders dt.7.9.2012 in the aforesaid writ petition ordered CBI to conduct preliminary enquiry in respect of 32.27 lacs Metric Tons of iron ore exported from 1.1.209 to 31.5.2010 From Belekeri Port. In the course of orders in the said writ petition, on the reports of the CEC, the Hon'ble Supreme Court of India interalia ordered CBI on 7.9.2012 to conduct a preliminary enquiry in respect of 32.27 lacs of iron ore exported from 1.1.2009 to 31.5.2010 from Belekeri port. An interim application was filed before Hon'ble Supreme Court of India and CBI was permitted to register criminal case against the exporters who were enquired in the preliminary enquiry and had exported more than 50,000 MTs of iron ore without valid permits as stated above. Accordingly, crime in aforesaid FIR came to be registered for the aforesaid offences.
As could be seen from the allegations made in the 8 Spl.CC.342/2018 FIR, a specific allegation has been made by the prosecution that during the period from 1.1.2009 to 31.5.2010, M/s. Venkateshwara Transport obtained iron ore by stealing the natural resource in the form of iron ore by excavation without valid authority by tress passing the forest area/government land, procuring such illegally excavated iron ore and received the stolen property to the tune of 1,09,377 MT illegally and exported the same through Belekeri port without payment of the required Royalty and Forest Development Tax. It is alleged that accused No.1 H.Manjunatha in connivance and conspiracy with the public servants of the Department of Mines and Geology and Forest Department and others caused wrongful loss to the Government of Karnataka with corresponding wrongful gain to themselves.
A specific allegation has been made by the prosecution that the mineral deposits including available at Bellary, Tumakuru, Bagalkot and Chitradurga districts of Karnataka, the Department of Mines of Geology, Karnataka is vested with the responsibility of regulating 9 Spl.CC.342/2018 the Mineral Resources in accordance with the Mines and Minerals (Development and Regulation) Act (MMDR Act) and these regulations have not been followed by these accused persons.
It is alleged that, the rate at which the royalty is to be collected is prescribed in the Gazette of India Part II Sec.4 of Ministry of Coal and Mines (Department of Mines).
It is alleged that, after excavation, the accused would submit application for transportation of iron ore to the concerned DMG mentioning the quantity, Fe grade, loading place, destination of his choice and DD towards Royalty for issue of Mineral Dispatch Permit.
It is alleged that M/s. Sri Venkateshwara Transport was formed in the year 2008 as a proprietorship concern represented by accused No.1. The TIN Number of the firm i.e., 29120810672 was assigned by LVO 500 Hospet w.e.f., 31.7.2008. the firm is having a valid Importer and Exporter Code (IED) No.0708015409. Said M/s. Sri Venkateshwara Transport maintains accounts bearing 10 Spl.CC.342/2018 No.30639926839, 30998379033 and EPC account No.30998382138 at State Bank of India, college Road, Hospet.
It is alleged that accused No.1 Manjunatha and his proprietorship concern M/s. Sri Venkateshwara Transport entered into an agreement with M/s. Adani Enterprises Limited to be its Stevedore at Belekeri Port vide agreement dated 26.9.2009. As per the said agreement M/s.Adani Enterprises will provide the plot, unloading, weighment, ship-loading etc. As a Stevedore, M/s.Adani Enterprises maintains the inward movement of vehicles engaged for transportation of iron ore by M/s. Sri Venkateshwara Transport at Belekeri port.
It is alleged that said M/s. Sri Venkateshwara Transport had exported a quantity of 1,49,160 MTs of iron ore through four shipments from Belekeri port during the period commencing from 1.1.2009 to 31.5.2010. The export proceeds against the shipment of the aforesaid quantity of iron ore was received by M/s. Sri Venkateshwara Transport in its bank accounts held at State Bank of India, Hospet branch. The details of 11 Spl.CC.342/2018 shipment made by M/s. Sri Venkateshwara Transport are as under:-
Sl.No. Shipping Name of Date of Date of Quantity Bill No. Vessel Arrival Departure (in MTs) and Date 1 128 MV Galini 26.12.2009 30.12.2009 24,410 dt.23.12.09 2 55 dt.5.2.10 MV 9.2.2010 14.2.2010 54,750 Theresa Shandong 3 103 MV 18.3.2010 25.3.2010 28,500 dt.18.13.20 Saphire 10 Seas 4 111 dt.24.3.201 0 5 163 MV Yin 14.5.2010 28.5.2010 41,500 dt.14.5.10 Shun Total 1,49,160 It is further alleged that apart from exports referred above, 12,458.66 MTs of iron ore were seized by Karnataka Forest Department. Thus a total quantity of iron ore procured by M/s. Sri Venkateshwara Transport is calculated at 1,61,618.660 MT's.
It is alleged that said M/s. Sri Venkateshwara Transport had no mining lease or stockyard in the State of Karnataka. Hence, 100% of the iron ore exported has been sourced from other traders/suppliers/Mine owners.
12 Spl.CC.342/2018 It is further alleged by the prosecution that the iron ore exported by M/s. Sri Venkateshwara Transport was sourced from M/s.Zest Enterprises, Sandur to the extent of 45,874.200 MT's, M/s.Eagle Traders and Logistics, Bellary to the extent of 45,000/- metric tones and M/s. Sri Viayaka Minerals, Hospet for the extent of 43,391.000 MT's , in all 1,34,265.200 MT,s.
So also M/s. Sri Venkateshwara Transport has procured the iron ore from Bhagvathi International, Davanagere to the extent of 5,017 MT's, Terepanth Foods Ltd., to the extent of 8,673 MTs, KLA India Ltd., to the extent of 570 MT's, Hayagreeva Minerals to the extent of 1,188 MT's and Hanumanth Rao Mines to the extent of 1,681 MT's in all 17,129 MT's and also scrapped iron ore at Adani Plot was 10,240.52 MT's.
It is alleged that M/s.Zest Enterprises (accused No.2) is a partnership firm of Shri M.M.Shivaraj (A3), Sri B.Chirangeevi (A4) and Sri G.Santosh (A5) holds a stock yard at Hulikunte village, Sandur with permission of Government of Karnataka for the purpose of processing, storing and benefication of iron ore since 13 Spl.CC.342/2018 4.2.2009. It supplied 45874.200 MT's of iron ore to M/s.
Sri Venkateshwara Transport vide five purchase orders dated 202.2010 for 40,000 MT's on various dates M/s. Sri Venkateshwara Transport has procured said iron ore.
It is specifically alleged by the prosecution that, the investigation by CBI revealed that the transportation of this cargo was arranged by A1 and M/s.Zest Enterprises received the sale proceeds for the entire cargo ie., 45,874.200 MT's from M/s. Sri Venkateshwara Transport.
It is further alleged that, the documentary evidence collected from five transporters namely I) Navagraha Transport ii) Naveen road Lines, iii) P.R.S.Logistics, iv) Sri Venkateshwara Minerals and v) Riya Logistic Co., would establish that the cargo was reached Belekeri Port. Out of 45,874.200 MT's of iron ore moved to Belekeri Port, 31,488 MT's moved under five valid DMG permits, the balance quantity of 14,386.2 MT's was transported without permit.
14 Spl.CC.342/2018 It is alleged that as the holder of stock yard M/s. Zest Enterprises (A2) has to declare the inward of iron ore and should take permit from Departments of Mines and Geology and to shift iron ore from the stock yard to any other place. The stock yardist has to submit Returns called 'Form B' to Department of Mines and Geology every quarter. At the outset, this is how the Department of Mines and Geology controls the movement of iron ore. The stock yardist has to pay the difference in royalty.
The buyer A1 of M/s. Sri Venkateshwara Transport could not provide the trip sheets or bulk permit details for the transportation of 14,836.2 MT's of iron ore. This indicates that A1 H. Manjunatha of M/s. Sri Venkateshwara Transport, M/s. Zest Enterprises (A2) and its partners Sri M.Shivaraj (A3), Sri B.Chirajeevi (A4) and Sri G.Santosh (A5) have conspired with unknown mine owners for illegal excavation, knowing fully well that the iron ore was illegally excavated, received the stolen property, fraudulently and dishonestly transacted between them and M/s. Sri Venkateshwara Transport exported it through Belekeri 15 Spl.CC.342/2018 Port. The aforesaid act of A1 to A5 attracts the penal provisions as well as fines and thus they have cheated the Government.
It is further alleged by the prosecution that the CBI investigation also revealed that M/s.Eagle Traders and Logistics (A6) is a partnership firm of Sri B.Nagendra (A7) and Kuruba Nagaraj (A8). M/s.Eagle Traders and Logistics (A6) supplied 50,000 MT's of iron ore to M/s. Sri Venkateshwara Transport vide three invoices. Accused No.6 received the sale proceeds at their account maintained at Axis Bank, Bellary Branch.
It is further alleged by the prosecution that out of 50,000 MT's of iron ore sold to M/s. Sri Venkateshwara Transport, 45,000 MT's of iron ore were moved to Belekeri Port. The transportation of the above cargo to Belekeri port was arranged by A1 Manjunatha of M/s. Sri Venkateshwara Transport through 12 transporters i.e., i) Matha Logistics ii) Mitra Logistics Co., iii) PRS Logistics
iv) Sri Sainath Transport v) Sri Siddeshwara Transport
vi) Sri Venkateshwara Logistics vii) Malenadu Logistics
viii) Sri Venkateshwara Logistics iv) Sri Venkateshwara 16 Spl.CC.342/2018 Minerals x) R.Y.Logistics xi) Sri Veeresh Transport and
xii) Riya Logistic Company. These 12 transporters transported the entire quantity of iron ore i.e., 45,000 MT's from various mine heads/ stock yards i.e., M/s.Saantha Lakshmi Jayaram Mines ii) SVK Dasanapura Plot iii) SVK Vyasanakere Plot and iv) T.M.Plot. The vehicles details furnished by the above 12 transporters were matching with the inward entries of M/s. Sri Venkateshwara Transport maintained by M/s.Adani Enterprises (Stevedore).
It is further alleged M/s.Saantha Lakshmi Jayaram Mines is controlled by Sri Mithyleshwar.J. (A12), S.V.K.Danapura Plot is controlled by Sri B.P.Anand Kumar @ Anand Singh (A9), S.V.K.Vyasanakere Plot is controlled by Sri Shyamaraj Singh @ Shyam Singh (A10) and T.M.Plot is controlled by Sri H.Noor Ahmed (A11). Thus the evidence collected to establish that the loading of the illegal iron ore at the mine head/stock yard mentioned above took place as per the directions of A9 to A12.
17 Spl.CC.342/2018 It is further alleged that accused No.9, 10, 11 and 12 could not account for the source of iron ore in terms of DMG bulk permits as well as DMG trip sheets. Hence, it is alleged that the said quantity is illegally excavated or committed theft/obtained as stolen property.
It is further alleged that the transfer of money from M/s. Eagle Traders and Logistics (A6) and M/s. Sri Venkateshwara Transport for the sale of 45,000 MT's were through banking channels and supported by sale invoices, whereas the transfer of money from A9, 10, 11 and 12 to M/s.Eagle Traders and Logistics (A6) were neither made through banking channels nor supported by the sale invoice. It is alleged that this makes it clear that A1-H.Manjunatha of M/s. Sri Venkateshwara Transport, M/s. Eagle Traders and Logistics (A6), B.Nagendra (A7), Kuruba Nagaraj (A8), B.P.Anand Kumar @ Anand Singh (A9), Shyamraj Singh @ Shyam Singh (A10), H.Noor Ahmed (A11) and Mihyleshwar.J. (A12) have conspired with unidentified persons/mine owners for illegal excavation of iron ore. These accused No.6, 7 and 8 knowing fully well that the iron ore was 18 Spl.CC.342/2018 received from A9 to 12 was stolen property and sold it to H.Manjunatha (A1) who received the said property and transported it to Belekeri Port without DMG Permits. Thus the accused No.1, 6 to 12 have evaded the royalty for 45,000 MT's of iron ore fines and thereby cheated the government. Hence, the accused have committed the offence punishable under Sec. 21 of MMDR Act.
It is further specifically alleged by the prosecution that, M/s.Vinayaka Minerals (A13) is a partnership firm represented by its partners Sri R.Satyanarayana (A15), K.Sheshagiri Choudhary (A16), Sri B.Vishwanath & M.P.Suresh. The firm was re-constituted by retiring Vishwanath.B. and inducted A.Hanoorappa (A14) on 12.10.2011. Investigation revealed that A.Hanoorappa (A14) played a major role in managing the business of M/s.Vinayaka Minerals (A13) before actually becoming a partner of M/S.Vinayaka Minerals in October,2011. Among the partners, Satyanarayana (A15) and K.Sheshagiri Choudhary (A16) played a major role and B.Vishwanath and M.P.Suresh did not play any role in the business of M/s.Vinayaka Minerals.
19 Spl.CC.342/2018 It is further alleged that, investigation revealed that M/s.Sri Vinayaka Minerals (A13) sold 43,391 MT's of iron ore to M/s. Sri Venkateshwara Transport represented by H.Manjunatha (A1). M/s.Vinayaka Minerals (A13) raised three invoices for 35,005.038 MT's only, but received payments of 43,391 MT's at its account bearing No.909020045806148 maintained with Axis Bank Hospet.
It is alleged that, the transportation of the above said iron ore to Belekeri Port was arranged by A1- H.Manjunath through 11 transporters stated supra. The aforesaid 11 transporters transported 43,391 MT's of iron ore from various mine heads M/s.Saantha Lakshmi Jayaram Mines to Belekeri Port. The vehicle details furnished by the above 11 transporters were matching with the inward entries of M/s. Sri Venkateshwara Transport maintained by M/s. Adani Enterprises (Stevedore).
It is further alleged that M/s. Saantha Lakshmi Jayaram is a proprietorship of Smt.Saantha Lakshmi Jayaram. This concern has a mine lease No.2553. Smt. 20 Spl.CC.342/2018 Saantha Lakshmi Jayaram appointed her son Mithyleshwar.J. (A12) as her agent for operating the Mine. Investigation revealed that Smt. Saantha Lakshmi Jayaram was not active part in the mining and all the mining activities of M/s.Saantha Lakshmi Jayaram Mines were controlled by Mithyleshwar.J. (A12).
M/s. Saantha Lakshmi Jayaram did not raise any invoices on M/s.Vinayaka Minerals (A13). But in the light of evidence of said 08 transporters, it is conclusively established that the iron ore of 43,391 MT's was in fact loaded from the mines head of M/s. Saantha Lakshmi Jayaram Mines. The transfer of money from M/s.Vinayaka Minerals (A13) to M/s. Saantha Lakshmi Jayaram was in cash.
It is further alleged that these accused No.12 and 13 involved in commission of offences along with accused No.14 and 15. It is very clear that accused No.1 H.Manjunatha, M/s.Sri Vinayaka Minerals (A13), A.Hanoorappa (A14), R.Satyanarayana (A15), K.Shehagiri Choudhary (A16) and Mithyleshwar.J. (A12) have conspired together for illegal excavation of iron 21 Spl.CC.342/2018 ore. A12 excavated the iron ore from the mine head of M/s. Saantha Lakshmi Jayaram and sold to M/s.Vinayaka Minerals (A13) without obtaining DMG bulk permit and DMG trip sheets from the respective DMG office. Thus, these accused No.1, 12, 13, 14 and 15 have committed overt-acts of evading of royalty and thereby cheated the Government.
It is further alleged that so far, the iron ore procured from M/s.Bhagavathi International, Davanagere is 5017 MT's. Investigation revealed that accused No.1 procured this 5017 MT's of iron ore from M/s.Bhagavathi International, Davanagere under invoice No.9 dated 23.3.2010 at ex-port basis at Belekeri Port. Investigation further revealed that the said iron ore was sourced from M/s.R.Praveen Chandra (ML No.2294).
So far as the iron ore procured from M/s.Terepanth Foods Ltd., is concerned it is 8673 MT's. The records reveal that the accused No.1 and his proprietary concern procured 8673 MT's of iron ore from M/s.Terepanth Foods Ltd under invoice No.TFL/09-10/IRON/51 dt.24.3.2010 at ex-port basis at Belekeri Port.
22 Spl.CC.342/2018 Investigation revealed that this M/s.Terapanth Foods Ltd., procured 3004 MT's of iron ore from M/s.S.B.Logistics vide invoice No.TFL/34 dated 2.12.2009. Out of this quantity, 689 MT's of iron ore were sold to M/s. Sri Venkateshwara Transport.
For the sale of 7984 MT's iron ore to M/s.Terepanth, M/s.Kalyani Steels obtained 02 DMG permits.
So far as iron ore procured from M/s.KLA India Ltd is concerned it is 570 MT's. It is accused No.1 and his proprietorship concern procured 570 MT's of iron ore from KLA India Ltd., under invoice No.BLK/IOF/DOM/01/10-11 dt.25.5.2010 at ex-port basis at Belekeri Port. It is further alleged that M/s.KLA India public Ltd., procured 15,918.92 MT's from 08 traders and out of which the firm exported 15,000 MT's on 24.4.2010 vide Shipping bill No.136/2010.
So far as iron ore procured from M/s. Hanumanth Rao Mines is concerned it is 1681 MT's of iron ore. Again it is Accused No.1 and his proprietorship concern 23 Spl.CC.342/2018 procured 1681 MT's of iron ore from M/S.Hanumanth Rao mines under invoice dt.15.6.2010 at Ex-Port basis at Belekeri Port. The investigation revealed that M/s.Hanumanthrao firm is having a mining lease bearing No.2505 within DMG, Hospet and having permitted stock yard at Bandravi within the jurisdiction of DMG, Chitradurga. The firm shifted 40,000 MT's under two permits. The firm surrendered the un-used Trip Sheets on each occasion to DMG, Chitradurga.
So far as iron ore procured by M/s.Hayagreev Minerals is concerned it is 1,188 MT's. The investigation revealed that A1 H.Manjunath and his proprietorship concern procured 1188 MT's of iron ore from M/s.Hayagreev Minerals vide purchase agreement dt.25.5.2010 at Ex-Port Basis at Belekeri Port. This fact is corroborated with the evidence of M/s.Adani Enterprises Ltd., the Stevedore. The sale proceeds were credited into the account of M/s.Hayagreev Minerals held at Axis Bank, Karwar Branch.
The investigation further revealed that M/s. Hayagreev Minerals purchased iron from un-registered 24 Spl.CC.342/2018 traders and each ton sold by it is without valid permit. The investigation revealed that Somanath G.Revankar (A17) who is no more, claimed that the iron ore sold to A1 was sourced from M/s.Bharath Minerals and Traders and Sri Maheshwar Babu Nayak (A18). Investigation established that M/s.Bharath Minerals and Traders is a non-existing and fictitious firm. Thus accused No.17 and A18 knowing fully well that the iron ore was stolen property, fraudulently and dishonestly transported the iron ore to Belekeri Port and did not provide permits from DMG and thus they have committed overt acts of evading of royalty and thereby cheated the Government.
The criminal act of accused No.1 to 18 who are transporters and buyers of illegally excavated iron ore have furthered caused loss of royalty to the Government of Karnataka as follows:-
Name of the Illegal Qty (in IBM rate (in Rs.) Amount (in Rs) supplier firm MT's) M/s.Zest 14,386.2 1451.5 (average 20,81,569 Enterprises, rate of Feb-May-
Sandur 2010)
M/s. Eagle 45,000 984 (average rate 4,42,80,000
Traders and of Aug and Dec
Logistics, Bellary 2009)
M/s. Sri Vinayaka 43,391 1256 (average rate 5,44,99,096
25 Spl.CC.342/2018
Minerals, Hospet of Jan & Feb-
2010)
M/s.Hayagreev 1,188 1652 (average rate 19,62,576
Minerals of May-2010)
TOTAL 1,03,965.2 10,28,23,241
Loss incurred (Royalty): 10% of total value of iron ore i.e., Rs.1,02,82,324/-
It is specifically alleged by the prosecution that the above said acts of accused No.1 to 18 attracts the provisions of penal offences punishable under Sec.120-B, 379, 411, 420 of IPC and Sec.21 of MMDR Act 1957."
6. PW44 K.P.Sreejith, upon taking up investigation of this case which was registered by one Smt.Thenimozhli, he collected two documents from Port Office, Karwar on 28.11.2013. On 7.12.2013 he collected six documents from Customs Office, Belekeri. On 13.12.2013 he examined PW9 A.L.Idulkar, PW10-
A.Nagamohan, PW11-Chandrashekar Bhat, PW7 Mahesh Jayavanth Biliye and recorded their statements.
7. On 18.12.2013 he examined PW1 S.B.Samanth, PW6 Arun Athmaram Pawar, PW8-Yogish Anand Shetty and recorded their statements.
26 Spl.CC.342/2018
8. On 5.3.2014 he collected 08 documents from Adani Enterprises. On 14.3.2014 he collected four documents from DMG, Hospet and on the same day he examined PW3 S.Mallesha and recorded his statement.
9. On 15.3.2014 he examined PW12 b.B.Yuvaraj and recorded his statement.
10. On 28.3.2014 he collected 10 documents from accused No.14 and on the same day he collected 05 documents from M/s.Integrated Ispat India Limited, Bellary. He also collected 14 documents from accused No.3. On that day he examined PW29 B.Nalla Reddy and recorded his statement.
11. On 31.3.2014 he recorded statement of PW4 Prakash.
12. On 17.4.2014 he collected 12 documents from PW19 Kishore Kumar Jain.
13. On 8.5.2014 he collected 10 documents from PW34-Prakash Rao. He also collected eight documents 27 Spl.CC.342/2018 from Pw35 Jagannath and recorded his statement. He also collected five documents from Pw36 Basavaraj. He collected three documents from PW42 K.Katte Basappa.
14. On 15.5.2014 he collected six documents from Pw.15 Anantha Sena Reddy.
15. On 31.5.2014 he examined PW27 S.Venkata Reddy and recorded his statement. On 22.5.2014 he collected 13 documents from accused No.12.
16. On 5.6.2014 he collected six documents from PW31 Sampath Raj. On the same day he collected six documents from PW32 Prashanth M.Hadagali and recorded their statements. On the same day he collected 09 documents from PW33 N.M.Muthuraj and recorded his statement.
17. On 26.6.2014 he collected 13 documents from M/s.Bhagavathi International.
18. On 10.7.2014 he examined PW23-A.Subba Reddy and PW17 Manjunatha.A.M. and recorded their 28 Spl.CC.342/2018 statements.
19. On 11.7.2014 he collected four documents from H.V.Niranjan and recorded his statement.
20. On 17.7.2014 he collected four documents from PW38 H.Basavaraj and recorded his statement.
21. On 4.8.2014 he collected six documents from PW37-Nalin Kumar (CW-51) and recorded his statement.
22. On 12.8.2014 he examined PW28-Muthuraj (CW33) and recorded his statement. On the same day he collected 59 documents from Accused no.17. So also he collected three documents from Accused no.18.
23. On 14.8.2014, he collected nine documents from CW-49 Naresh and on the same day he collected seven documents from PW43-Dada Khalandar (CW-50) and recorded their respective statement. On the same day he collected 250 documents from PW26 Shabir Ahammed (CW25) and recorded his statement.
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24. On 26.8.2014, he examined CW-20 N.G.Indu Shekhar. On the same day he collected 5 documents from Axis Bank Karwar. So also on the same day he collected two documents from Accused no.15.
25. On 2.9.2014, he collected 33 documents from PW-22 Dominigos Farnandis (CW-39).
26. On 8.9.2014 he collected three documents from PW21-Chandrakanth.R (CW-38) and examined him so also, recorded his statement.
27. On 24.9.2014, he collected thirteen documents from PW20-Prasanna (CW37) and recorded his statement.
28. On 26.9.2014, he collected nine documents from PW18-Ramesh.H.G (CW-35).
29. On 17.10.2014, he collected two documents from PW16-Raveendra.H Shivpur (CW-32)
30. On 8.11.2014, he collected four documents 30 Spl.CC.342/2018 from CW-19 Anugrahee.H.U.C. On the same day he collected five documents from DMG, Hospet and collected five documents from Axis Bank, Karwar and three documents from Syndicate Bank, Sandoor Branch.
31. On 28.11.2014 he collected four documents from CW-24 Sunil and recorded his statement. On the same day he collected five documents from SBI, Hospet Branch.
32. On 01.12.2014, he collected five documents from PW-14 Manjunath.K.M (CW-16) and recorded his statement.
33. On 15.12.2014, he examined CW-18 Ravichandar and recorded his statement. On the same day he collected seven documents from DMG, Chitradurga and four documents from Axis Bank, Karwar.
34. On 20.12.2014, he examined PW-39 C.Parameshwaran (CW-53) and recorded his statement. On the same day he collected four documents from Axis 31 Spl.CC.342/2018 Bank, Karwar. On 23.12.2014 he collected four documents from CW-22 Praveen Nagappa Shahpur and recorded his statement.
35. On 19.2.2015, he collected one document from LBO490, Bellary and on the same day he collected one document from District Registrar, Bellary.
36. On 10.3.2015, he collected one document from Post Master, Gandhi Nagar Post Office, Bellary.
37. On 19.6.2015, he recorded statement of PW- 2 Sanjay Vittal Nayak (CW-10).
38. On 21.7.2015, he recorded statement of PW25 Uday Kumar Raghuram (CW-21) and CW23 Mathew Thomas.
39. On 9.8.2015, he examined PW24- Venkatesh.H.R (CW-9).
40. During the course of investigation he collected eight files containing original permits issued in 32 Spl.CC.342/2018 the name of Zest Enterprises by DMG, Hospet. They are marked as Ex.P.200 to 207.
41. After completion of investigation, as the prima facie case is made out against the accused persons, charge sheet came to be filed against accused persons before XVII Addl. Chief Metropolitan Magistrate Court, Bengaluru and it was registered as CC No.16152/2017. Records of this case reveal that during investigation itself the accused were enlarged on bail.
42. After filing the charge sheet, Said court took cognizance of the offences. Presence of accused was secured before said court. Copies of prosecution papers were furnished to accused as contemplated under Sec.207 of Cr.P.C.
43. A detailed order came to be passed by the said court on 7.4.2018 committing the said case to this court i.e., Special Court. After transmission of records this case is renumbered as above. Presence of all the accused is secured. The records of this case do reveal that during the pendency of the case accused No.17 died and case against him stands abated.
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44. During the course of trial of the case, applications were filed by accused No.1, 2 to 5, 7, 9, 10, 11, 12 and 18 for their discharge. Learned predecessor of this court has rejected said application vide order dt.22.9.2018.
45. After hearing both sides, charges against accused persons came to framed for offences under sec.379, 411,420 r/w 120-B of IPC, read over and explained to accused persons in Kannada language known to them. They pleaded not guilty and claimed to be tried.
46. The prosecution to substantiate its case, examined in all fourtyfour witnesses as PW's 1 to 44 and got marked Ex.P.1 to 214 with respective signatures thereon and closed prosecution evidence.
47. After closure of evidence by prosecution, statement of accused No.1 to 16 and 18 were questioned under Sec.313 of Cr.P.C., so as to enable them to answer the incriminating circumstances appearing in the evidence of prosecution. They denied their complicity in 34 Spl.CC.342/2018 the crime, did not choose to lead any defence evidence on their behalf.
48. Heard the arguments of learned PP and learned counsel for accused. Meticulously perused the records.
49. It is argued by the learned SPP that in this case charge sheet is filed against the accused persons not only under the provisions of IPC, but also under the provisions of MMDR Act 1957. Cognizance of the offence was taken by the court. Illegal transportation of the iron ore by the accused is proved. They hatched a plan, to cause loss to the Government of Karnataka. He submits before the court that as per the orders of the Hon'ble Supreme Court of India the case against accused persons has been registered and prosecution is able to establish the guilt of the accused. In support of his submission, he places reliance on various evidence spoken to by witnesses and documents so marked in this case. He submits that the prosecution has proved the guilt of the accused beyond all reasonable doubt. Hence, prayed to convict the accused.
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50. As against this submission, counsels for the respective accused submit before the court that, the very foundation itself who are the mine owners is not established in this case. The very foundation of the case itself is not concrete. These cases are filed as per the direction of the Hon'ble Supreme Court of India. Interim order came to be passed by the Hon'ble Supreme Court of India. Hon'ble Supreme Court of India directed the CEC to look into the large scale illegal mining in Karnataka State in government land. Further they submit before the court that on perusal of entire evidence on record placed by the prosecution, absolutely there is no evidence lead by the prosecution to indulge the accused No.1 and other accused in the commission of the crime. Therefore, it is submitted before the court that, the provisions of Sec.232 of Cr.P.C., are applicable to the facts of this case to discharge the accused persons. Accused No.1 is a trader, they are all ex-port purchase. So relying upon the evidence of prosecution witnesses, it cannot be stated that the prosecution is able to prove the guilt of the accused. PW44 has lied both with regard to the taking back complaint. It 36 Spl.CC.342/2018 amounts to criminal contempt. IT is further submitted that as there is no evidence before the court against accused No.1 and other accused, the accused persons are entitled for acquittal. So also the counsels for the respective other accused also submit that no case is made out against them, therefore, the accused are entitled for acquittal.
51. I have given my anxious consideration to the arguments of both sides. In view of the rival contentions of both the sides, also materials placed on record by the prosecution, as well as defence, the following points arise for my consideration:-
1) Whether the prosecution, beyond all reasonable doubt proves that Accused No.1 Sri H.Manjunath, Proprietor of M/s.
Venkateshwara transport, during the period 1.1.2009 to 31.5.2010, with active or passive participation of A2 company and its partners accused No.3 to 5 in connivance and conspiracy with unknown mine owners knowing fully well that the 37 Spl.CC.342/2018 iron ore was illegally excavated, received the stolen iron ore of 14836.2 MTs of Iron ore fines fraudulently, dishonestly, transported the same to Belekeri Port, caused wrongful loss to the exchequer of the State and wrongful gain to themselves and thereby committed offences punishable U/s.379, 411, 420 r/w 120(B) of IPC?
2) Whether the prosecution beyond all reasonable doubt proves that, accused No.1 K.Manjunath of M/s. Venkateshwara Transport, accused No.7 B.Nagendra, accused No.8 Kuruba Nagaraj being the partners of accused No.6 M/s.Eagle Traders and Logistics, in connivance and conspiracy with accused No.9 B.P.Anand Kumar @ Anand Singh, accused No.10 Shyamraj Singh @ Shyam Singh, accused No.11 H.Noor Ahmed and accused No.12 Mitheleshwar.J conspired with unidentified 38 Spl.CC.342/2018 mine owners for illegal excavation of iron ore, accused No.9 to 12 stolen to iron ore of 45000 MTs, sold the same to accused No.1, and accused No.1 received the stolen iron ore, transported the same without DMG Permits, thereby caused wrongful loss to the state exchequer and wrongfully gained themselves, thereby committed an offences punishable U/s.379, 411, 420 r/w 120(B) of IPC?
3) Whether the prosecution beyond all
reasonable doubt proves that, accused
No.1 H.Manjunath in connivance and
conspiracy with accused No.13 M/s. Sri Vinayak Minerals, Accused No.14 A.Hanoorappa, accused No.15 R.Sathyanarayana, Accused No.16 K.Sheshagiri Choudhary, accused No.12 J.Mitheleshwara illegally excavated the iron ore from the mine head of M/s.Shanthalakshmi Jayaram and illegally 39 Spl.CC.342/2018 sold 43391 MTs of iron ore to accused No.13 M/s.Vinayak Minerals without obtaining DMG permits, you accused No.1 received the stolen iron ore from accused No.13, transported the same to Belekeri port without DMG permits, caused wrongful loss to the state exchequer and wrongfully gained yourselves, thereby committed an offences punishable U/s.379, 411, 420 r/w 120(B) of IPC?.
4) Whether the prosecution beyond all reasonable doubt proves that, accused No.18 Mahesh Babu Nayak, in connivance and conspiracy with deceased accused No.17 deceased Somanath G.Revankar, knowingly fully well that 1188 MTs of iron ore is the stolen property, fraudulently and dishonestly transported the said iron ore to Belekeri port without DMG permit and thereby caused wrongful loss to the state exchequer and wrongfully gained to himself, thereby committed an offences 40 Spl.CC.342/2018 punishable U/s.379, 411, 420 r/w 120(B) of IPC within my cognizance.
5) What order?
52. My answer to the above point is as under:-
Point No.1:- In the negative Point No.2:- In the negative Point No.3:- In the negative Point No.4:- In the negative Point No.5:- As per final order for the following.
REASONS
53. Point No.1 to 4 :- These points so raised supra are inextricably mixed up with each other. Therefore, I would like to discuss them together so as to avoid repetition of discussion and confusion.
54. It is admitted fact that Sec.4(1) of the MMDR Act provides that mining operation can be undertaken in lieu with the area of mining lease. Sec.4(1)(a) of MMDR Act prohibits transportation or 41 Spl.CC.342/2018 storage of minerals by any persons except in accordance with the provisions of the MMDR Act and rules. It is also admitted that as per Section 9 of the Act, a lessee shall pay royalty for the mineral removed or consumed by him or authorised agent, manager, employee, contractor or sub-lessee from the lease area, after such commencement, at the rate for the time being specified in respect of the mineral.
55. So also it is a fact admitted by both the sides that the rate at which the royalty is to be collected is prescribed in the Gazette of India Part-II Section 3 of the Ministry of Coal and Mines, Department of Mines, Ministry of Mines notification dt.14.10.2004 and it was in effect till 13.8.2009. It is also admitted that the Ministry of Mines by notification dt.13.8.2009 prescribed the fixation of royalty as 10% of the sale price on ad valerom basis as the sale price is fixed by Indian Bureau of Mines by compiling state wise list by fixing all India rates.
56. It is also fact admitted between both the sides that the Director, Department of Ports and Inland 42 Spl.CC.342/2018 Water Transportation, in port area at Belekeri the Stevedores involved in this case i.e., M/s.Adani Enterprises Ltd., M/s.Rajmahal Silks and other two. The Stevedore is a "port services provider" providing infrastructural facilities such as jetty, customs notified transit storage area (landing place for the export bound cargo for the transit storage in Customs Notified Area of the Port), cargo handling facilities at shore, loading the cargo into the vessel, after statutory customs and port clearances. The iron ore arriving through lorries inside the port will be unloaded, dumped, piled and heaped by the Stevedore and stored in the designated plots allotted to exporters by the Stevedore till they export. The documentation related to the cargo ownership is the sole responsibility of the owners / exporters themselves and the role of the Stevedore is limited to physical handling of the cargo after requisite clearance and keeping account of the iron ore at each of the plot.
57. So also it is admitted fact by both the sides that the bulk permits and trip sheets are legal requirements for purchase /sale or transportation of the 43 Spl.CC.342/2018 materials excavated by using the mine lease permit as per Mines and Minerals (Developments and regulations) Act, 1957. Without bulk permits and trip sheets, the excavated quantity cannot be transported from the area of excavation to the port or to some other place as per MMDR Act. If a trader/supplier fails to account the source of excavated quantity or transported the same without taking DMG bulk permits or trip sheets from lessee, such quantity is then illegally transported and illegally excavated. Sec.4(1)(A) of MMDR Act as stated supra prohibits the transportation or storage of minerals by any person without valid permit. The violation of the aforesaid Act attract section 21 (1) of MMDR Act., 1957.
58. These are the legal aspects which are admitted by both the sides which need not be proved.
59. In this case, a specific allegation have been made by the prosecution against all the accused that this accused No.1 in connivance with other accused persons and in conspiracy with unknown mine owners, knowing fully well that the iron ore was illegally excavated, received the said iron ore at various point of 44 Spl.CC.342/2018 time and illegally transported the said iron ore to the extent of more than 50000 MTs to Belekeri port and exported the same and thereby this accused have committed the offences not only under the provisions of Indian Penal Code, also under the MMDR Act. But the cognizance of the offence is taken only for the offences punishable under Sec. 379, 411, 420 r/w 120B of IPC by the court, which is not challenged by the prosecution till date before any competent appellate authority or court. Thus, taking of congnizance of the aforesaid offence has become final.
60. Before adverting to the other aspects of the case, let me analize certain admitted facts in this case. That the mineral deposits including the iron ore available at Bellary, Tumakuru, Bagalkot and Chitradurga districts of Karnataka, the Department of Mines and Geology, Karnataka is vested with the responsibility of regulating the mineral resources in accordance with the MMDR Act 1957 and other regulations issued from time to time. It is also admitted fact that between both the sides that, after due 45 Spl.CC.342/2018 clearance by appropriate government authorities, Government of Karnataka issues mining leases to the firm, company, individuals for mining iron ore in a specific area.
61. Keeping in mind the legal principles, and also the charges levelled against the accused persons, now let me analize that, whether prosecution is able to establish the guilt of the accused beyond all reasonable doubt. Because, in criminal cases the prosecution is expected to prove the chain of links to establish the guilt of accused. Even, if slightest doubt arises in the case of prosecution, that benefit has to be extended to the accused. This principle is well established and has to be applied to all criminal cases under the criminal jurisprudence.
62. PW1 Sushil Balachandra Prabhakar Samanth being the Retired Deputy Commissioner of Central Excise and Service Tax states in his evidence that from July 2009 to June 2010 he was holding the Additional charge of Customs Division, Karwar. He was holding a regular charge of Custom Division of Karwar from July 46 Spl.CC.342/2018 2010 to August 2011. Belekeri port was under the control of Custom Division, Karwar. For exporting of Iron Ore from the port, he speaks about the procedure followed by the exporters that firstly the exporter has to submit shipping bill to the Superintendent of Customs. The general procedure and duties of the customs department in respect of export are implementation of the provisions of the Customs Act, Prevention of Anti Smuggling activities, prevention of illegal migration of international passengers.
63. He further states in respect of export of Iron Ore that, the iron ore exporter has to submit the shipping bill as per Sec.50 of the Customs Act. The total quantity of Cargo, its value, total custom duty and cess, name of the exporter and importer, the details of destination port will be mentioned in the shipping bill. On receipt of the bill the Superintendent will enter the same in customs register and shipping bill register. Exporter has to obtain code number from Director of Foreign Trade before submitting the bill. Exporter has to register his name with the Foreign Exchange bank 47 Spl.CC.342/2018 dealer by opening a bank account. Thus this PW1 speaks with regard to the procedure being followed by the exporter of iron ore.
64. After completion of the entire procedure as as stated by this PW1, the Superintendent of Docks will issue allowed shipment order. After issuing the shipment order, the process of loading of the cargo will commence. Thus it is stated by him that when he was holding additional in-charge of the Karwar division, under Shipping bill No.103/10 dated 18.3.2010 was pertaining to Venkateshwara Transport, total quantity of 27,000 WMT Iron Ore Fines of 63% was exported to China through MV Sapphire Seas. The value of the cargo was Rs.12,70,91,700/-. Custom duty collected was Rs.63,54,585/- and cess Rs.27,000/-. The date of export was on 25.3.2010. He further states that along with shipping bill pre-shipment invoice, exchange control declaration form, Mate receipt, contract agreement, etc., have been annexed with marked at Ex.P.1 (23 sheets) in this case. According to him, Ex.P.1 shows about export of 27,000 MTs of iron ore fines of 63% was exported to China. Customs duty and cess was collected.
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65. Likewise, under bill No.111/10 dated 24.3.2010 pertaining to Venkateshwara Transport, about total quantity of 1500 MTs Iron Ore Fines of 63% was exported to China through MV Sapphire Seas. The value of the cargo was Rs.70,60,650/-. Custom duty collected was Rs.3,53,033/- and cess Rs.1,500/-. The date of export was on 25.3.2010. He identifies Ex.P.2 (with 7 sheets) containing all the relevant documents like pre- shipment invoice, exchange control declaration form, mate receipt, draught survey report, TRC Challan, etc.,. Thus Ex.P.2 proves export of 1500 MTs of iron ore fines of 63%.
66. Under Shipping bill No.128/09 dated 23.12.2009 pertaining to Venkateshwara Transport total quantity of 24500 MTs Iron Ore Fines of 62.50% was exported to China through Belekeri Port by MV Caline Ship by collecting cess of Rs.24,000/-. The value of the cargo was Rs.8,48,11,038/- and the date of export was on 30.12.2009. He identifies the documents together as Ex.P.3 (25 sheets).
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67. Under Shipping bill No.55/10 dated 5.2.2010 this Venkateshwara Transport exported total quantity of 54750 WMT Iron Ore Fines of 61% to China through Belekeri Port by MV Thereshanton Ship. The value of the cargo was Rs.22,39,35,713/-, Custom duty of Rs.1,11,96,786/- and cess Rs.54,750/- was collected. The date of export was on 14.2.2010. To that effect he identified documents together as Ex.P.4 (23 sheets).
68. Further, this PW1 speaks that under Shipping bill No.163/10 dated 14.5.2010 Venkateshwara Transport exported total quantity of 41500 MTs Iron Ore Fines of 55% to China through Belekeri Port by MV Yinshun ship. The value of the cargo was Rs.12,23,42,000/-. Custom duty of Rs.61,17,100/- and cess Rs.41500/- was collected. The date of export was on 28.5.2010. He identified the documents together as per Ex.P.5 (21 sheets).
69. Thus this PW1 specifically speaks that from December 2009 to 31.5.2010 this M/s.Venkateshwara Transport, Hospet had exported total quantity of 1,49,160 MTS of Iron Ore through Belekeri port. On 50 Spl.CC.342/2018 perusal of Ex.P.1 to 5 which are not disputed by the defence, they do demonstrate that total quantity of 1,49,160 MTS of Iron Ore was exported by this M/s.Venkateshwara Transport, Hospet to China. All the relevant documents have been identified by this PW1. In the examination-in-chief he never states that there was illegal transportation of iron ore from the mine heads or the stock-yard and export of the same from Belekeri Port, without paying any royalty.
70. In categorical terms in page No.7 of the cross-examination this PW1 says that "so far as custom act is concerned the accused No.1 has complied the provisions of the Customs Act while exporting the above cargo. In the form of compilation necessary documents were produced by the accused No.1."
71. Thus the evidence of this PW1 goes to establish that accused No.1 has complied the provisions of the Customs Act while exporting the cargo of 1,49,160 MTS of Iron Ore from Belekeri Port.
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72. PW2 Sanjay Vittal Nayak was working as Cargo Officer from 2009 to 2010 at Belekeri Port. He was working as a Cargo Officer in Adani Enterprises Limited at Belekeri Port. According to his evidence, his duty was to record the data of transportation of the Iron Ore through trucks to the Port. The Head office of the M/s.Adani Enterprises is at Ahmedabad and this branch office is at Belekeri Port. This Adani Enterprises is a Stevedore port service provider, which provides facilities and get the navigation channel, customs notified transit storage area for exporting the Cargo. Iron Ore was supplied by different customers for the purpose of exporting to the foreign countries from the Belekeri Port. According to his evidence, the Iron Ore transported inside the Belekeri Port was unloaded by them in different plots. After receiving the custom clearance and let export order, they used to load the cargo in the barges, the barges will be taken to mother vessel, the Iron Ore was loaded from the barges to mother vessel.
73. It is his evidence that, M/s.Adani Enterprises entered into an agreement with Sri Venkateshwara Transport (accused no.1) for unloading the Iron Ore 52 Spl.CC.342/2018 from the trucks and loading the same to the mother vessel through barges. Said agreement was entered in to between accused no.1 and M/s.Adani Enterprises for shipment of the Iron Ore through Belekeri Port on 26.9.2009 marked at Ex.P.6 (D-93) (4 sheets). For transportation of Iron Ore this Stevedore services used to maintain inward and outward movement of Cargo. They maintained the other registers pertaining to accused no.1 for the year 2009-10. He identifies Ex.P.7 the Cargo outward statement from 1.1.2009 to 31.5.2010. As per Ex.P.7, accused no.1 totally procured 1,34,249 MTS of Iron Ore Fines for the above said period and procured 17,129 MTS of Iron Ore at ex-port basis at Belekeri Port. Thus this Ex.P.7 shows the export details of the iron ore. He also identifies a document marked at Ex.P.8 (204 sheets) is the day wise inward of A.1 showing the total Iron Ore received with truck numbers on every day. As per Ex.P.8 the total quantity of Iron Ore transported through lorries by A.1 to Belekeri port was 1,34,249 MTS. Receipt memo dated 5.3.2014 marked at Ex.P.9 is produced for handing over Ex.P.7 & 8 by Venkatesh.H.R (CW-9).
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74. Thus according to the evidence of this PW2, this accused No.1 during the aforesaid period exported total quantity of 1,49,160 Iron Ore through Belekeri Port. The transportation details submitted by the different transporters through accused no.1 are matching with the inward details maintained by the M/s.Adani Enterprises. Thus as per the evidence of this PW2 in all 1,49,160 MTs of Iron Ore was exported by Accused No.1 through Belekeri Port.
75. He also speak before the court on oath that the transportation bills of Veeresh Transport dated 31.1.2010 marked at Ex..10 shows details pertaining to transportation from Danapur plot to Belekeri port.
76. Further, this PW2 states that the bill of Matha Logistics dated 31.1.2010 shows that it had also transported iron ore from TM plot to Belekeri, SVK Dhanpur Plot to Belekeri, Nagappa Plot to Belekeri Port. Said receipt memo is marked at Ex.P. 11.
77. This Mithra Logistics Company vide bill dated 4.2.2010 transported iron ore from Nagappa plot 54 Spl.CC.342/2018 to Belekeri, SVK Dhanpur Plot to Belekeri. Its statement is marked at Ex.P. 12. Like wise these Ex.P. 13 to 20 show about the transportation of iron ore from various plots to Belekeri Port along with receipt memo. So also, the statement statement of account in the name of M/s. Venkateshwara Minerals held in Axis Bank, Hospet, and Souhardha Co-operative Bank, Hospet, including the receipt memo dated 14.8.2014 are together marked at Ex.P.21, shows about sending of iron ore to Belekeri Port. Thus these Ex.P. 10 to 21 matches with the details found in Ex.P. 8.
78. This PW2 has been cross-examined by counsel for accused No.1. In unquivocal terms he states that entire quantity of iron ore exported by accused No.1 was transported by various transporters as named in Ex.P. 11 to 21 which was brought inside the Belekeri Port with all clearance.
79. PW3 S.Mallesh being the Geologist, DDMG Office, Hospet at the relevant time, states that as per the government order it is mandatory to register a stock yard with DDMG office. For registration of the stockyard 55 Spl.CC.342/2018 the applicant has to produce like NA permission, CFO issued by the Pollution Control board, VAT registration certificate, DIG registration certificate, IT returns with a DD for Rs.1,000/- towards registration fees drawn in favour of DDMG. This PW3 states that for transportation of the iron ore from the stock yard, royalty is to be paid to the government by the stockyardist or trader. He identifies the document Ex.P. 22 and 23. According to his evidence, Zest Enterprises issued with bulk permits (five in number) for the period from 1.1.2009 to 31.5.2010 for the transportation of the Iron Ore and accordingly, it had transported an extent of 31,488 MTS of iron ore from stockyard to Belekeri Port. Said document is marked at Ex.P.24. So also this PW3 states that this Ex.P. 24 consist of bulk permit no.50 dated 8.4.2010, permit No.409 dated 24.4.2010 for the transportation of Iron Ore of 6,000 and 1,504 MTS respectively.
80. It is elicited in the cross-examination that the selection of royalty is governed by Sec.9 of MMDR Act, 1957. From the stock yards at the mining heads, 56 Spl.CC.342/2018 several check posts have been established by the District Task Force committee in between Bellary and Belekeri port in addition to the check post flying squad is also supervising or checking the transportation of the iron ore. So, in each check post, according to his evidence, necessary documents for transportation of iron ore like permits, trip sheets, bulk permits will be checked, if the documents were found correct, then only the lorries are allowed to move further towards Belekeri port. It is further elicited by accused No.9 that royalty including the ground rent will be incorporated. Thus the evidence of PW3 is very much clear that which denotes the collection of royalty and transportation of iron ore as per the documents stated by him in his examination in chief.
81. PW4 Prakash U.Shivappa being another Geologist, speaks before the court that lease holder or stock yardist has to apply for the issue of bulk permits for transportation of iron ore fines. He too says that no person can transport the mineral without bulk permits and trip sheets. These documents must be in the possession of the transporter of the mineral. While 57 Spl.CC.342/2018 transporting the mineral from one place to another place, bulk permit and trip sheets are must, they have to carry those documents while transporting the mineral.
82. He further states that the transportation of the mineral should be done within one month from the date of issue of permit as the same permit should not be used for further transportation of the mineral. He says that as per bulk permit No.50 dt.8.4.2010, 6000 MTs of iron ore transported to Belekeri port in the name of M/s.Zest Enterprises through transporter accused No.1. Under bulk permit No.409 dt.24.4.2010, 1504 MTs of iron ore was transported to Belekeri port in the name of M/s.Zest Enterprises through transporter accused No.1 which are marked as Ex.P. 24(a) and Ex.P. 24(b).
83. He identifies Form No.B submitted by M/s.Zest Enterprises from February 2009 to June 2010 (four in No.) which are marked as Ex.P. 25. As per the statement submitted by Zest Enterprises during said period accused No.2 procured a total quantity of 89,969 MTs of iron ore fines from various traders and sold 81,024 MTs of iron ore to different suppliers. Out of the 58 Spl.CC.342/2018 said quantity 31,488 MTs of iron ore fines was sold to accused No.1 by the end of May 2010. He identifies said document as per Ex.P. 25, which reflects that accused No.2 had paid royalty for the transportation of the iron ore for 31,488 MTs, and not paid royalty for the balance quantity of 14836.2 MTs iron ore transported to Belekeri port. Said quantity of 14836.2 MTs is not reflected in Ex.P. 25.
84. PW4 identified Ex.P. 26 being the note sheets and bulk permits of M/s.Zest Enterprises in the name of accused No.2. Bulk permit No.14432 dt.31.3.2010 issued in the name of Zest Enterprises through this permit the transporter accused No.1 was permitted to transport 4,992 MTs of iron ore to Belekeri port, which is marked as per Ex.P. 26(a). Likewise, bulk permit No.14177 dt.20.3.2010 in the name of Zest Enterprises through this permit the transporter accused No.1 was permitted to transport 4992 MTs of iron ore to Belekeri Port, it is marked as Ex.P. 26(b). So also bulk permit No.143823 dt.4.3.2010 in the name of Zest Enterprises shows that through this permit accused No.1 transporter 59 Spl.CC.342/2018 transported 14,000 MTs of iron ore to Belekeri port and it is marked as per Ex.P. 26(c).
85. It is elicited from the mouth of this PW4 in the cross-examination that before the IO he has stated that stock yardist has to obtain the bulk permits and trip sheets for transportation of the iron ore. Nowhere this witness stated supra speak about stealing of the iron ore from any of the stock yard or the mine heads and transportation of the same by accused No.1. Various check posts have been established in addition to the flying squad etc., no deviation has been noticed by any of the officers of the DMG.
86. PW5 Shanmukha D.H. being another Geologist speak before the court that in the year 2014 one Mahaveer was working as a Deputy Director of Mines and Geology at Chitradugra. He identifies the documents issued by Mahaveer as per Ex.P.27. He identify his signature. According to his evidence, bulk permit pertaining to ML No.2294 for transportation of Iron Ore of 500 MTS from the lease area to Belekeri Port and to that effect an application is received as per 60 Spl.CC.342/2018 Ex.P.28. Test report is at Ex.P.28(a), Note sheet is marked at Ex.P.28(b). The copy of the bulk permit no.105490 dated 12.1.2010 is marked at Ex.P.28(c). He identifies the covering letter dated 25.3.2014 submitted by Mahaveer as per Ex.P.29 . So also identified Ex.P. 30 letter addressed by DDMG to I.O. dt.3.12.2014. His evidence is to the effect that one Hanumantha Rao submitted application dated 16.12.2009 to DDMG, Chitradurga, along with the said letter he produced Mineral dispatch permit obtained from Hospet office, along with a letter as per Ex.P.31 seeking bulk permit. The statement of permits as per Ex.P. 31 (a) issued for transportation of Iron Ore from Mine Head to Bondravi stockyard reflects that quantity of 93,874 MTS was transported. Ex.P. 31(b) shows transportation of Iron Ore to the extent of 20,000 MTS to Belekeri port. So, PW5 speaks about the document Ex.P. 31, 32, 33,34 so also Ex.P. 35. This Ex.P. 35 shows that Hanumantha Rao surrendered unused trip sheets and bulk permit for total quantity of 24,992 MTs.
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87. PW5 has been thoroughly cross examined by counsel for accused No.1. He says as per Ex.P. 28 to 37 he verified the same and found correct.
88. PW6 Arun Pawar being the Deputy Conservator at the relevant time states that, he was deputed to look after duties in between 3.12.2009 and 8.6.2010 for four days in a week. Thereafter, he was regularly posted as Deputy Port Conservator at Belekeri. As a Port Officer it was his duty to be the overall in charge and Captain of the Port. He used to take care of day to day activities in the Port such as collection of the revenue, due from the vessel and its agents on behalf of Govt. of Karnataka and report the same to the Port Officer. He further states that whenever a ship was expected to arrive at the Port, prior intimation used to be received by the Port authorities. He used to examine the particulars of the ship expected to arrive at the Port. Whenever the Cargo is to be exported in the said ship, the Port authorities used to collect the necessary documents with regard to the Port duties and also particulars of Cargo to be exported. He speaks with 62 Spl.CC.342/2018 regard to the procedure being followed at the Port, whenever the cargo is exported from Belekeri Port. He has been cross-examined and he has stated before the court that by receiving the entrance charges the authorities allow the vehicles to enter the port and charge is Rs.6/- per lorry. So, this PW6 speaks with regard to the procedure being followed at the Port and he being the Deputy Port Conservator of Belekeri Port, has spoken about the duties being discharged by him whenever the cargo is received at the Port and whenever the cargo is exported. It is not the case of the prosecution that this procedure being spoken to by PW6 has been violated by the accused persons. Thus to the extent of procedure being followed at the Belekeri Port whenever the cargo is received and whenever cargo is exported, the evidence of this witness has to be accepted. To that extent I believe the evidence of PW6.
89. It is further elicited in the cross-examination of PW6 that after completion of all the formalities, the Customs Department issue a permission stating that 'let export'. This let export permission is being furnished to 63 Spl.CC.342/2018 the Port Authorities and thereafter the Port Authorities permit the concerned ship for its departure. He identifies that if any lapse with regard to following the formalities, the Port Authorities or the Customs Authorities have power to stop the vessel from sailing. In this case, not even a single instance is brought on record by the prosecution that the procedure was not properly followed and Port Authorities or the Customs Authorities exercised their power and stopped the ship from sailing.
90. PW7 Mahesh Biliye worked as Deputy Port Conservator at Belekeri Port from 2005 to 2010. According to him this Belekeri Port is an Anchorage Port. He states that there are in all four Stevedores operating at Belekeri Port. They are 1) M/s.Adani Enterprises Limited, 2) M/s.Sri Mallikarjun Shipping Private Limited,
3) M/s.Salagaonkar Mining Industries Limited and 4) M/s.Rajmahal Silks. These Stevedores are given lease of land in the Port Area being notified by the Custom Area for the purpose of storing the Cargo. He identified Ex.P.38(D-2) being letter dated 28.11.2013 issued by the 64 Spl.CC.342/2018 Port Officer, Karwar, which contains the details of Iron Ore exported from 1.1.2009 to 31.5.2010 pertaining to Sri.Venkateshwara transport. He identifies the said document as Ex.P.38(a)(D-3), which bears the signature of PW6. Thus the documents stated by the witness at Ex.P.38(a to m) do suggest about the export of the cargo to the extent of 54,750 MTS of Iron Ore which was arrived to the Belekeri Port on 9.2.2010 and it was departed through M.V.Theresa Shandong Vessel on 14.2.2010. He also speaks that 41,500 MTS Iron Ore arrived at Belekeri Port on 14.5.2010 and was transported through MV Yin Shun Vessel on 28.5.2010. So also, 24,410 MTS of Iron Ore arrived at Belekeri Port on 26.12.2009 and was transported through M.V.Galini Vessel on 30.12.2009. So also, 28,500 MTs of Iron Ore arrived at Belekeri Port on 18.3.2010 and was transported in the Vessel called M.V.Saphia Seas on 25.3.2010. Thus he says that he has given a statement before the CBI Officer stating that in all 1,49,160 of MTS of Iron Ore was exported through various vessels through Belekeri Port.
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91. This PW7 has been cross examined by the counsel for accused No.1. It is elicited that only the stacking area is the notified area by the Customs Department and as per Ex.P. 38(a) the name of exporter is shown as Sri Venkateshwara Transport and I.E. code is mentioned as 078015409. One thing is clear from the evidence of this PW7 that by following all the formalities, 1,49,160 of MTS of Iron Ore exported through various vessels through this Belekeri Port belongs to accused No.1 M/s. Sri Venkateshwara Transport.
92. PW8 Yogish Ananda Shetty is another Deputy Port Conservator, worked at Belekiri Port and his duty was to collect the dues. He identified Ex.P. 38 and Ex.P. 38(a) to (m) and as per these documents 1,49,160 of MTS of Iron Ore was exported through various vessels through Belekeri Port during 1.1.2009 to 31.5.2010. According to his evidence, whatever the fees, dues, etc., used to be borne by exporters through their shipping agents. In this case also the exporter has paid fees and dues etc., to the Port Authorities which he was liable to pay. So, to the extent of collecting the fees and dues, the 66 Spl.CC.342/2018 evidence of PW8 has to be accepted and I believe the evidence of this PW8 to that extent only.
93. PW9 Anand L. Idurkar, has worked as Superintendent of Central Excise and Customs in the year 2002 and he was Superintendent of Customs (Docks) from December 2007 to June 2010 at Belekeri Customs house. His nature of duty was to supervise loading of the Cargo, means, iron ore from wharf to the Barge and to the outer anchorage up to the ship. He says about loading the cargo being sent by accused No.1. According to him shipping bill number is assigned chronologically and the details are entered in the shipping bill register by the Inspector of Customs and mentioned in all quadruplicate shipping bill forms. According to the rules iron ore upto 64% Ferric content are freely exportable. He identifies all the documents so confronted to him and admits the contents of the same. He has done his duties according to his evidence. He identifies Ex.P. 1 to Ex.P. 5 being the documents prepared at the Port. According to his evidence in the cross-examination, the Superintendent of customs acts 67 Spl.CC.342/2018 as a appraiser.. In the Customs Department there is no designation called as appraising and CH. So he speaks of the duties being discharged by him during the relevant period about export of the cargo sent by accused No.1 to Belekeri Port and from that it is exported. He admits that Port clearance issued to him only after satisfaction of all the formalities. He admits that he allowed the shipment after verification of all the necessary documents in this case. He says that only the goods which are legally permitted to be exported are exported. So to the extent with regard to the duties discharged by him, his evidence is to be accepted. Therefore, I believe his evidence to that extent only.
94. PW10 A.Nagamohan, Inspector of Customs at Belekeri Customs House during July 2008 to March 2010 states in his evidence with regard to issue of let export order in duplicate as per Ex.P. 4. According to his evidence, it contains a test report which is marked as Ex.P. 4(d). By examining this PW10 prosecution tried to prove that there was export of the iron ore stated supra by this accused No.1. All the formalities have been followed as per the evidence of this witness.
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95. PW11 Chandrashekar Bhat worked as Superintendent of Customs (appraising and customs house) at Belekeri Custom House from June 2008 to May 2010. According to his evidence he used to pass an order 'let export' in the duplicate copy of shipping bill. After loading is completed the surveyors along with boarding officers used to certify the quantity of iron ore loaded in the ship based on which the Captain of the vessel would issue mate receipt. He identifies Ex.P. 1 to 5 having issued by him. He has been thoroughly cross- examined by the counsel for accused No.1, 9 and 10. He maintains that when all the relevant documents are found in order then only they will issue endorsement as 'let export'. According to his evidence as per the documents submitted on behalf of M/s. Sri Venkateshwara Transport (A1) all the documents were in order. He admits that if there is any short coming in the documentation and in payment of duties, etc., the department will not issue the let export endorsement. But in this case 'let export' endorsement has been issued by this officer.
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96. PW12 D.B.Yuvaraja, Geologist worked at DDMG Office during the relevant period. He speaks of following the procedures under the MMDR Act with regard to issuance of licence etc. He also speaks with regard to the bulk permit indicating the total quantity of iron ore to be transported from the mine head with validity of permits followed by required number of trip sheets at the rate of 16 metric tons would be generated at the computer section itself. It is elicited from the mouth of this witness that once in a year transportation and dispatch would be audited by the Mines and Geology Department. But no anomaly or deficiency is found in the audit report and nothing is spoken by the this witness to that effect. He speaks in the cross- examination that he does not know that from Hospet to Belekeri Port the vehicle has to pass through five districts. If the documents are not properly maintained and produced before the check post, their department has got every authority to take necessary action against such transport. Even the vehicles are also seized. He does not know that till date no case is registered against the transporters of accused No.1. Not even single word 70 Spl.CC.342/2018 is spoken to by this witnesses in this case that when the cargo is being transported to Belekeri port from Hospet and various other places, documents were found unsatisfactory and vehicles are seized etc. No such evidence is spoken to by any of the witnesses in this case.
97. PW13 Vishwanath Vasudev Raju, Geologist, who worked at the relevant time, says that, a covering letter is annexed with the bulk permit issued during the period from 1.1.2009 to 31.5.2010 pertains to M/s. Kalyani Steels. The said bulk permit so issued is marked at Ex.P. 39(b). So he speaks of issuance of bulk permits in favour of M/s.Kalyani Steels, M/s.Hospet Ispat and ILC Industries from Koppal District, which are marked as Ex.P. 39(d to f). He admits in the cross-examination that as per the provisions of MMDR Act, it is the lease holder of the mines have to pay the royalty and obtain permit. But he never says any violation of any kind by the accused.
98. PW14 Manjunath.K.M. is the FDA, District Registrar Office, Bellary, and he has come before the 71 Spl.CC.342/2018 court to mark Ex.P. 40, which is a receipt memo issued by the Sub-Registrar office. No incriminating evidence has been spoken to by this PW14 in his evidence.
99. PW15 G.Anantha Sena Reddy was doing the construction business, he speaks that he just did a raising contract in Karnataka. During said raising contract business, he executed an agreement on 1.4.2009 for a period of one year with the condition that M/s.Saanta Lakshmi Jayaram would pay a sum of Rs.165/- per MTs towards screening, crushing and transportation of ROM plus applicable taxes in the mines. During investigation he handed over the said agreement as per Ex.P. 49. From the evidence of this PW15 it is very much clear that he being raising contractor has followed the procedure and handed over the document Ex.P. 49 to the CBI office. No incriminating evidence has been spoken to by this witness against any of the accused in this case. In the cross-examination it is elicited that for the purpose of crushing and screening initially the machineries were installed at the mining site itself. Transportation of ROM means 'runs of miles' is 72 Spl.CC.342/2018 from the mining pit to the machinery in the mine itself plus whatever he has done with regard to crushing and screening is spoken to by this witness.
100. PW16 Ravindra Shivapur has come before the court to state that during 2010 in the month of June his friend Maheshwar Babu met him and told him that he has supplied approximately 600 MTs of iron ore to M/s.Hayagreev Minerals represented by Sri Somanath Revankar(Accused No.17). It is further stated by him that he has got some problems with valid permit and therefore, he told him that if he receives the payment for the sale of iron ore from M/s.Hayagreev Minerals into his account, he may face difficulties. Therefore, he sought the assistance of this PW16 to get the amount being transferred into the account of this PW16 and thereafter, he withdrew said amount. He identifies receipt memo at Ex.P. 54 which shows that whatever the amount of iron ore being sold by Hayagreev Minerals, the amount is deposited in the account of this PW16. This Somanath Revankar is accused No.17 and he is no more. No incriminating evidence has been spoken to by 73 Spl.CC.342/2018 this PW16 against any of the accused in this case. To the extent that the amount has been credited into the account of this PW16, his evidence has to be accepted. To that extent, I believe his evidence.
101. PW17 Manjunath.A.M., General Manager of Bhagavathi International, states that it was formerly called as M/s. Santosh Concrete Products. One Smt.Prema Chennappa was the proprietor of the said firm and the firm was engaged in various manufacturing and supply of spun and hume pipe etc. Now the said Bhagavathi International is engaged in trading of iron ore from 2005. He identifies document Ex.P. 57 which is memo dt.26.6.2014, wherein he has furnished copy of transaction details with Bhagavathi International, Davanagere, it is marked as Ex.P. 58. This document reflects trip sheet number, forest permit details and the relevant date. So, according to the evidence of this PW17 certain amount of iron ore to the extent of 5017 MTs were transported belonging to M/s. Sri Venkateshwara Transport. It is elicited in the cross- examination that 5017 MTs of iron ore was sold as per 74 Spl.CC.342/2018 the DMG permit by their firm. They secured the said quantity of iron ore from R.Praven Chandra. So, no violation has been spoken to by this witness by any of the accused in this case.
102. PW18 Ramesh.H.G. is another witness being Liason Officer and has come before the court and has spoken to before the court on oath with regard to mining lease by Department of Mines and Geology (referred to as DMG for short), forest clearance from Ministry of Environment and Forest, Government of India and Environment Clearance from Department of Ecology and Environment and other related clearances. He speaks about the procedure being followed for collecting VAT etc. According to this witness, with valid permit only they have sold the iron ore. He admits that as per the provisions of MMDR Act, the royalty has been paid for obtaining DMG permit. This witness says that 5000 MTs of iron ore was sold to M/s.Bhagavathi International. He too never says about the violation of DMG permit, etc.
103. PW19 Kishore Kumar Jain, General Manager of Terapanth Foods Limited, has come before the court 75 Spl.CC.342/2018 to speak about the object of the firm which includes the manufacture of the free flow iodine salt and trading in minerals. M/s. Terapanth firm has established a stock yard at Bannihatti Taluk to store mineral. During 2009 their firm has sold 8673 MTs of iron ore to M/s.Sri Venkateshwara Transport at Ex-Port basis at Belekeri Port on 24.3.2010. One Sri Manjunatha in the month of February 2010 belongs to M/s. Sri Venkateshwara Transport came to their office and requested to sell the iron ore to the extent of 8500 MTs. Since sufficient quantity of iron ore was lying at Belekeri Port, their company agreed to sell the same. M/s. Sri Venkateshwara Transport had raised purchase order in the month February 2010 for the quantity of 8000 MTs of iron ore at the rate of Rs.3,230 per MT. M/s. Sri Venkateshwara Transport credited the amount to their firm. It is elicited that ex-Port sale means "the material which is lying in the Port is being sold". Similar thing has happened in this case. Whatever the iron ore lying at Belekeri Port was sold by this firm of this PW19 to accused No.1 M/s. Sri Venkateshwara Transport.
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104. PW20 Prasanna is a private business man and he has come before the court to speak about production of hot metal iron ore and coke, which are used as basic raw materials. He identifies the documents as per Ex.P. 100 to 107. According to him, in the year 2009 their company has sold 7984 MTs of iron ore at one slot and 672 MTs of iron ore under permit. Amount has been deposited to their account. Thus this witness also never speaks about violation of the provisions of MMDR Act or any provisions of IPC and other Acts.
105. PW21 C.A.Chandrakanth Dedhia, is a private service person and according to him their partnership firm as per the orders being placed by M/s. Sri Venkateshwara Transport sold 1681 MTs of iron ore as per the invoice dt.15.6.2010 at ex-Port basis at Belekeri Port. An amount of Rs.33,25,050/- has been received through cheque as the sale proceeds from M/s. Sri Venkateshwara Transport. He identified the documents at Ex.P.109 to 120. To the extent of selling the aforesaid iron ore the evidence of this witness has to be accepted.
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106. PW22 Domrgos Fernandes is a private service person, sold 570 MTs of iron ore worth Rs.14,25,000/- on ex-port basis at Belekeri. He identifies the documents at Ex.P.128 to 160. It is elicited in the cross-examination that the iron ore procured from various suppliers were stored at Belekeri port in the premises of Stevedore M/s. Adani Enterprises Ltd. He admits that since the iron ore were blended with each other, therefore, it is not feasible to say the sources of iron ore sold to M/s. Sri Venkateshwara Transport. Except this, nothing is elicited from the cross- examination. No incriminating evidence has been spoken to by this witness.
107. PW23 A.Subhash Reddy, has worked in Ganapathi and Company during 2009 and he states before the court that M/s.Ganapathi and Company entered into an agreement with M/s.Saantha Lakshmi Jayaram which would pay Rs.165/- per MTs towards the screening, crushing and transportation of ROM plus applicable taxes. The agreement was extended for another year from 1.4.2010 and it was extended upto 78 Spl.CC.342/2018 31.3.2012. As per the work order said work has been carried out. He says that crushing and screening is done within the mining area only. All the machineries for excavating, screening and crushing the iron are deployed in mining area. The extent of what he has spoken about crushing and screening, excavating the iron ore, the evidence of this witness has to be accepted.
108. PW24 Venkatesh H.R. joined Adani Enterprises as DGM on 6.1.2007 and worked at Belekeri Port till 31.3.2010. According to his evidence, M/s. Adani Enterprises Limited is a "Port Services Provider"
providing infrastructural facilities such as Jetty, navigation channel, customs noified transit storage area, cargo handling facilities at shore, self propelled barges for cargo transportation through sea route and stevedoring for the facilitation of exports by various exporters. So, whatever the services rendered by this M/s.Adani Enterprises has been spoken to by this PW24 Venkatesh.
109. It has come in the evidence of this PW24 that M/s. Sri Venkateshwara Transport at Belekeri Port 79 Spl.CC.342/2018 entered into an agreement with Adani Enterprises for providing port services. He identifies Ex.P.161 document i.e., the agreement. To the extent of entering into agreement with M/s.Adani Enterprises by this M/s. Sri Venkateshwara Transport the evidence of this witness has to be accepted. He speaks in the cross-examination about the procedure being followed when the cargo is being received at Belekeri Port. Once the Cargo enters the customs notified Port, it is deemed that Cargo is sent for export. Therefore, even such Cargo also be exported and custom authorities will not look into the Cargo related documents as per his evidence.
110. PW25 Uday Kumar Raghuram is examined by the prosecution being the head of Karwar Branch, Axis Bank. He identifies the letter as per Ex.P. 167. So also he identifies Ex.P. 168 to 173. According to his evidence S.B. account of one Basavaraj Balaganur containing 16 sheets is produced in this case to show that amount is deposited in the account of said Basavaraj. To that extent, the evidence of this witness is to be accepted. No cross-examination is directed to this witness by any of the accused persons.
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111. PW26 Safeer Samad worked as supervisor at M/s. Sri Venkateshwara Transport has come before the court and states that accused No.1 being the proprietor of this concern and as per his directions, he sent trucks at M/s.Saantha Lakshmi jayaram Mines known as Nagappa Plot, S.V.K.Danapur Plot, T.M.Plot, Zest Plot for the purpose of transportation of iron ore during the year 2008-09. He further states that iron ore from the said plots was transported to Belekeri port for the purpose of Export. He used to get commission of Rs.150/- per truck. He identifies documents from Ex.P. 177 to 186 being the invoices and other documents. All the while the prosecutor tried to get mark the photo copies. Therefore, the examination-in-chief was deferred. Because of this, I.O. was directed to be kept present before the court. But based upon the photo copies only the prosecution wants to build this case.
112. According to evidence of PW26 in all 1,50,000 MTs of iron ore from Belekeri Port was exported. He did all the transaction through bank only. Karnataka Forest Department has seized 12,458.66 MTs 81 Spl.CC.342/2018 of iron ore from Belekeri Port. M/s. Sri Venkateshwara Transport is not possessing any mining lease or its own stockyard. The iron ore which their company has exported was purchased by their company from Sri Vinayaka Mineral, Hospet, M/s.Eagle Traders and Logistics M/s.Zest Enterprises, Sandoor. They also purchased iron ore lying at Belekeri Port. But he cannot say the quantity of iron ore purchased from Belekeri port. From M/s.Zest Enterprises, approximately they purchased 45,000 MTs of iron ore. From Vinayaka Minerals they purchased about 43,391 MTs of iron ore. From Eagle Traders and Logistics they have purchased about 50,000 MTs of iron ore. This PW26 has spoken with regard to purchase of the iron ore at various quantity and exporting the same from Belekeri Port. He has been declared hostile witness by SPP. Though he has been directed with severe cross-examination, but nothing worthwhile is elicited from the mouth of this witness so as to disbelieve his version given in the examination-in-chief. Therefore, the evidence of this PW26 will not come to the rescue of the prosecution in any manner about the illegality being committed by the 82 Spl.CC.342/2018 accused persons so alleged by the prosecution in this case.
113. PW27 S.Venkata Reddy, private service, worked as a Supervisor in Ganapathy and Company, says that he do not know who were supervising the loading activities of iron ore loaded at M/s.Saantha Lakshmi Jayaram Mines. He has been declared hostile witness by SPP and nothing worth is elicited from his mouth in his cross-examination. So the evidence of this PW27 becomes inconsequential to the case of the prosecution.
114. PW28 Muthuraj Deshwan Balaganuru states in his evidence that the accused No.1 never met and informed about he facing shortage of iron ore in the year 2010. It is the case of the prosecution that this accused No.1 because of non-availability of minerals, approached this PW28 and purchased iron ore for the purpose of export. But nothing is elicited from the mouth of this witness. Though this witness has been declared as hostile by the prosecution. So the evidence of this PW28 do not come to the aid of the prosecution in any manner.
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115. PW29 B.Nalla Reddy, worked as loading supervisor of Eagle Traders Bellary. He states regarding the purchase of iron ore by accused No.1 and exporting of the same, etc. But he has not supported the case of prosecution and therefore, he has been declared as hostile witness. He states that he has not stated before the I.O. as per Ex.P. 189. Thus the evidence of this PW29 also will not help the case of the prosecution in any manner.
116. PW30 H.V.Niranjan has spoken before the court that he know the proprietor of M/s. Sri Venkateshwara Transport by name Manjunatha i.e., Accused No.1. He says that in the month of November 2009 said Manjunatha requested him to provide vehicle for transportation of iron ore from Danapur Plot to Belekeri port. Accordingly, he provided the same. As per the instructions of accused No.1 about 1211 MTs of iron ore was transported by him From Danapur plot to Belekeri Port. He never says that without DMG Permit, without trip sheet, the said iron ore was transported. So this witness is also declared as hostile, nothing 84 Spl.CC.342/2018 worthwhile is elicited from the mouth of this witness so as disbelieve his evidence.
117. Like wise we find Sampath Raj PW31, Purashanth Hadagali PW32, N.M.Muthuraj PW33, Prakash Rao Ganesha PW34, Jagannath gounder PW35, PW36 Basavaraj Basann, PW37 - S.Lalith Kumar, PW38 H.Basavaraj, have come before the court to say that they engaged their respective trucks for transportation of iron ore at the instance or request of accused No.1. They never say about the violation of DMG permit and transportation of iron ore being a stolen property. All these witnesses have been declared as hostile witnesses by the prosecution. But nothing worth is elicited from the mouth of these witnesses to discard their version given in their examination-in-chief. So therefore the evidence of these witnesses can be accepted to the extent that they engaged or hired their respective trucks for the purpose of transportation of the iron ore as requested by accused No.1. To that extent I believe the evidence of these witnesses.
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118. PW39 C.Parameshwaran was the Deputy Controller of Mines, he has come before the court to say that issuance of DMG permits etc. The Director of DMG initially grant lease for 20 years. To the extent of granting of lease period to excavate the iron ore at the mines, his evidence has to be accepted.
119. PW40 B.Nagaraj, Post Master, comes before the court to say about letters issued on Bharath Minerals and Traders during the period from 1.1.2009 to 31.5.2010. To the extent letters being served as per Ex.p.193, his evidence is to be accepted.
120. PW41 G.Manohar come before the court to say that one Shivaraj was his business Associate and Zest Enterprises is having a stock yard of iron ore at Hulikunte village. The said Zest Enterprises did arrangement for selling the iron ore through their company. As per the negotiation, about 6000 MTs of iron ore was sold through their company. To that effect they raised invoices as per Ex.P. 194. No cross-examination is directed to this witness. Thus to the extent of selling the iron ore about 6000 MTs the evidence of this witness is to be accepted.
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121. The evidence of PW42 K.Katte Basappa is another Transport business man who has hired his trucks for the transportation of 3,310.49 MTs of iron ore from Nagappa Plot and T.M.Plot to Belekeri Port as requested by accused No.1. He too has been declared as hostile witness. Nothing worthwhile has been elicited from the mouth this witness to disbelieve his version given in the chief-examination. Therefore, evidence of PW42 is of no help to the case of the prosecution.
122. PW43 Dada Khalander states that as per the records maintained in their office, their firm has transported 1634.94 MTs of iron ore from Nagappa Plot, Danapur Plot and Vyasanakere Plot to Belekeri Port. He idenified the document as per Ex.P. 196 and his respective signatures. He too has been declared as hostile witness. Nothing worthwhile has been elicited from the mouth of this witness to disbelieve his version given in the chief-examination. This PW43 speaks about transportation of iron ore from various plots stated supra.
123. Then remains the evidence of PW44 the Investigation Officer. He has spoken before the court 87 Spl.CC.342/2018 about the investigation being done by him and he says in the cross examination that like that of this case, similarly there are 22 cases registered by CBI, EOW, Chennai. Nature of allegations in all the complaint are same. But in all the cases accused are different. Out of these 22 cases, he investigated three cases. He admits that as per the orders of Supreme Court, the CBI, EOW, Chennai has conducted the investigation with regard to the theft of iron ore which is having weight of more than 50,000 MTs but less than 50,000 MTs. In all the three cases, he filed charge sheet. It is elicited in the cross examination that after investigation he filed charge sheet against accused persons for the offences alleged to have been committed under the provisions of Indian Penal Code and Prevention of Corruption Act and MMDR Act. He further admits that ACMM Court took cognizance of the offence only under the provisions of IPC. He returned the complaint which is to be filed under the provisions of MMDR Act and till date no such complaint is filed under MMDR Act. He personally has not drawn any mahazar in this case. Before taking up any investigation he did not notice any of the complaints filed against accused No.1 88 Spl.CC.342/2018 by any authority under MMDR Act. He further admits that accused No.1 has paid the payments to sellers, suppliers, traders, through banking channels. He further states that CBI is governed by Delhi Special Police Establishment Act, 1946. they have to follow the said guidelines right from the registring of FIR till filing of the charge sheet. He has produced materials to show that these accused No.6,7,8 knowing fully well that the iron ore was received from accused No.9 and 12 was a stolen property, and have sold the same to accused No.1. First time he speaks all these evidence in the cross examination. PW44 has been directed with severe cross- examination. His evidence in the cross-examination gives a clear go bye to the case of the prosecution. He admits that possession of Nagappa Plot came in possession of accused No.12 in the month of August 2010. On reading the evidence of this witness, it reflects that no proper investigation is done by the I.O. We find casual approach of the I.O. in investigation. No pain is taken by him to collect relevant documents so as to prove the offences alleged against accused persons. Role of each accused is not stated by the I.O. in the commission of alleged crime.
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124. On perusal of entire oral evidence being spoken to by the witnesses, none of the witnesses have spoken about commission of the theft of iron ore from various mine heads or stock yards. It is accused No.1 who has admitted throughout his 313 statement that he has transported iron ore from various plots, stock yards, etc., and purchased iron ore by paying consideration, transported the same to Belekeri Port and from Belekeri port, the iron ore is exported.
125. So far as documentary evidence is concerned, the I.O. during the course of investigation has collected documents marked in this case as per Ex.P. 1 to 214.
126. Ex.P. 1 to 5 are the bills containing 23 sheets, 07 sheets, 23 sheets, etc., respectively do demonstrate about the supply of iron ore and from where the iron ore was purchased, has been mentioned in these bills.
127. Ex.P. 6 is an agreement entered into with regard to supply of the iron ore with rates mentioned 90 Spl.CC.342/2018 thereon. Likewise, we find outward statement as per Ex.P. 7, inward statement as per Ex.P. 8, which show that how much iron ore was bought and how much iron ore was received by the transporter.
128. Ex.P. 9 to 12 are the receipt memos. We find Ex.P. 13 is another receipt memo. Bills, transport statement, bank statements etc., are produced as per Ex.P. 13(b to i). These documents show abut the supply of iron ore of various quantities to M/s. Sri Venkateshwara Transport owned by accused No.1.
129. Ex.P. 13 to 21 show about the statement of account, receipt memos, etc., to show about the receipt of the iron ore by he accused No.1, who inturn transported the same to Belekeri Port.
130. Ex.P. 22 to 48 are marked in this case which are the documents being collected through PW3 during the course of investigation. Ex.P. 23 belongs to accused No.2 i.e., entire file and obtaining of bulk permits by this accused No.1 to transport the iron ore. While marking these documents, defence has not raised even little 91 Spl.CC.342/2018 finger or any objections. Inturn, this accused No.1 admits about the purchase of iron ore at various quantities as mentioned in the receipt memo and the bills and transport of the same to Belekeri Port through various transporters having hired by him.
131. Likewise, we find Ex.P. 49 receipt memo, copy of agreement as per Ex.P. 50. Ex.P. 51 to 53 are the ledger extracts.
132. So also we find various documents in this case marked as Ex.P. 54 to 154 containing invoices, authorisation letter, certificate of import and export, bank statement, DMG permits, etc., coupled with these, we have copy of bill of lading and copy of shipping bill at Ex.P. 155 and 156, copy of draft survey report at Ex.P. 157, port clearance certificate at Ex.P. 158, bank certificate at Ex.P. 159. We find lease agreements at Ex.P. 163 and 164. None of the lease holders of the mines have complained against the accused persons for having committed theft of iron ore at various mine heads as well as stock yards.
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133. Bank statements have been produced by the prosecution coupled with the statement of various witnesses, who never say that they have stated before the I.O. as per Ex.P. 187 to 190. The statement of bank account, mining lease, etc., do demonstrate that the iron ore have been transported and Ex.P. 196(c to f) is the transport details.
134. On scrupulous reading of the documents so marked in this case on behalf of prosecution as per Ex.P. 1 to 214, never demonstrate about the commission of theft and misappropriation and illegal transport of the same without permit, etc. Persons being the lease holders, stock yardists are the best persons to say about the commission of theft of iron ore by accused No.1 through some agencies or some persons. But none of the mine owners, stock yardists of the iron ore, have never stated before the court that the stolen iron ore was transported at the instance of accused No.1. So, oral evidence, spoken to by the witnesses falsifies the very case of the prosecution.
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135. I have elaborately discussed evidence of each witnesses in foregoing paras, wherein none of the witnesses have spoken about the ingredients of the offences made out against the accused. If all these documentary evidence, coupled with the oral evidence is read together, it do demonstrates that none of the ingredients of offences is made out by the prosecution with legal and acceptable evidence. So therefore, in the considered view of this court, though number of documents are placed on record by the prosecution, none of the documents speak about the ingredient of the offence being attributed against accused persons. So far as law is concerned, I am going to discuss the same in further paras.
136. In this case, specific allegations have been made by the prosecution against accused No.1 and other accused alleging that during period 1.1.09 to 31.5.2010, this accused No.1 in connivance, active and passive participation of accused No.2 and its partners i.e., accused No.3 to 5, did conspiracy with unknown mine owners, knowing fully well that the iron ore was illegally 94 Spl.CC.342/2018 excavated, received the stolen iron ore of 14,836.2 MT of iron ore, fraudulently, dishonestly and transported the same to Belekeri Port. So also his accused No.1 in connivance with accused No.7 and 8 being the partners of accused No.6 Eagle Traders and logistics in connivance and conspiracy with accused No.9 and 10, so also accused No.11 and 12, conspired with un-identified mine owners for illegal excavation of iron ore and these accused No.9 to 12 sold 45,000 MTs of iron ore to accused No.1 and accused No.1 has received the stolen iron ore, transported the same without DMG permits, so also accused No.1 in connivance and conspiracy with accused No.13 Sri Vinayaka Minerals, accused No.14, 15, 16 and accused No.12 excavated the iron ore from mine head of M/s.Saantha Lakshmi Jayaram and illegally sold 43,391 MTs of iron ore to accused No.13 Vinayaka Minerals without obtaining DMG permits and this accused No.1 received the iron ore from Accused No.13 and transported the same to Belekeri Port without DMG permits and again it is alleged against the accused persons that accused No.18 in connivance and conspiracy with deceased accused No.17, knowing fully 95 Spl.CC.342/2018 well that 1188 MTs of iron ore was stolen property, fraudulently, dishonestly transported the same to Belekeri Port without DMG permits and thus these accused persons caused wrongful loss to the state exchequer and gained themselves. Thus the offence under Sec.379, 411, 420 r/w 120 of IPC has been alleged against accused persons.
137. During the course of discussion, with regard to the evidence being lead by the prosecution, it is discussed with regard to the role of each accused. Now we have to ascertain that whether the legal principles laid down in the Indian Penal Code really attracts to connect the accused person in the commission of crime alleged against them. For this we have to read the provisions of Indian Penal Code.
138. So far as offence punishable under Sec. 379 of IPC is concerned, it speaks of punishment for theft. As per this section, whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both. Thus Section 378 of IPC speaks of definition 96 Spl.CC.342/2018 of theft. To attract the provisions of Sec.379 of IPC the prosecution must prove;
(i) that the property in question is
movable property;
(ii) that such property was in the
possession of a person;
(iii) that the accused moved such
property whilst in the possession of that person;
(iv) that he did so without the consent of that person;
(v) that he did so in order to take the same out of the possession of that person;
(vi) that he did so with intent to cause wrongful loss to that person or wrongful gain to himself.
139. In this case, property is iron ore, being movable property. So, in a case of present nature the burden is on the prosecution to prove the guilt beyond all reasonable doubt. So to say, it is not sufficient that the property found in the possession of accused stolen, there must be a finding to the effect that property was the stolen property. Unless the prosecution first prove that the property seized from the accused forms part of the property stolen, the accused cannot be asked to 97 Spl.CC.342/2018 explain as to how he came to possess that property. If the case of the victim is not corroborated by any other evidence, then conviction on the basis of evidence of victim alone cannot be sustained.
140. In this case none of the victims have come forward to say that their iron ore so excavated from the mining area have been stolen. Because, possession of the stolen goods soon after the theft raises the presumption that the possessor is either the thief or has received the goods knowing them to be stolen. However, the law mandates that the burden to prove that the property seized from the accused is stolen property, lies on the prosecution. Only after this burden is discharged can the accused be asked to explain his possession of the seized articles. No investigation is done by the I.O. that from which mining area, stock yard, iron ore was stolen. A simple allegation is made regarding theft of iron ore. No oral or documentary evidence is collected by the I.O. to prove the offence of theft in the manner alleged in the charge sheet.
141. Then, the definition of receiver of the stolen property, which is defined under Sec.411 of the IPC.
98 Spl.CC.342/2018 Sec.411 of IPC speaks of dishonestly receiving stolen property. Sec.410 speaks of stolen property. As per this section, it explains what comes under the words 'stolen property'. Things which are stolen, extorted, robbed or where the property has been obtained by criminal misappropriation or criminal breach of trust, come under the extended signification given to the words 'Stolen property'. As per the definition of 'possession' of theft, as defined under section 378; extortion as defined under Sec.383; robbery as defined under section 390; criminal misappropriation as defined under Sec.403 and criminal breach of trust as defined under Sec.405. Thus under Sec.410 of IPC it is immaterial whether the transfer is made or misappropriation or breach of trust has been committed within or outside India.
142. Sec 410 enacts that when the possession of the property has been transferred by (i) theft; (ii) extortion (iii) robbery or (iv) where the property has been criminally misappropriated; or (v) the property in respect of which criminal breach of trust has been committed, can be said to be "stolen property".
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143. So, essential requirement of the receiving the stolen property is that the property seized from the possession of the accused must be proved by the prosecution to e stolen. This burden lies on the prosecution.
144. Sec.411 of IPC defines about dishonestly receiving stolen property. Thus it is for the prosecution to prove (i) dishonest receipt or retention of stolen property (ii) knowledge or reason to believ at the time of receipt that the property was obtained in one of the ways specified in the section. Thus this section 411 of IPC is succeeding section directed not against the principal offenders i.e., thief, robber or mis-appropriator, but against the class of persons who trade in stolen articles and are receivers of stolen property.
145. In this case, it is specifically alleged that accused No.1 in connivance with other accused persons purchased the stolen property which has been excavated from various unknown mine owners. Thus, no doubt the prosecution is trying to attract the provisions of 411 of IPC, but the receiver of the stolen property though not 100 Spl.CC.342/2018 strictly participator in the offence by which the property has been acquired, facilitates the commission of offence or at least renders its detection more difficult, by aiding the thief in the disposal of the property. Therefore, ingredients of Sec.410 and 411 of IPC have not been complied by the prosecution. When theft of iron ore itself is not proved by the prosecution from various stockyards, mine heads, etc., then question of receiving stolen property does not arise at all.
146. Even it is alleged by the prosecution that there is cheating by these accused persons causing loss to the exchequer of the State and gaining themselves. Sec.415 of IPC defines cheating. This Section has two parts. In the first part, the inducement must be 'dishonest' or 'fraudulent'. In the second part, the inducement should be intentional. So, a guilty intention is an essential ingredient of the offence of cheating. Therefore, to secure conviction of a person for the offence of cheating, 'mens rea' on the part of that person, must be established. So far as second part of sec.415 is concerned, 'property' at no stage, is involved.
101 Spl.CC.342/2018 Here, it is doing of an act or omission to do an act by the complainant, as a result of intentional inducement by the accused, which is material. Thus to attract the offence under Sec.420 of IPC the ingredients as defined under the provisions of Sec.415 of IPC are to be proved by the prosecution. None of the ingredients of the offence of cheating are brought on record by the prosecution.
147. Criminal Conspiracy is alleged against the accused persons. Sec120B of IPC is attributed against the accused. Sec.120B of IPC speaks of punishment for criminal conspiracy. This punishment for criminal conspiracy is more severe, if the agreement is to commit serious offence; it is less severe if the agreement is to commit an act, which although illegal, is not an offence punishable under Sec. Death, imprisonment for life or rigorous imprisonment for more than two years. Then what are the essential ingredients of criminal conspiracy. They are; (i) an agreement between two or more persons; (ii) agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is 102 Spl.CC.342/2018 not illegal in itself but is done by illegal means. Then what is therefore necessary is to show meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means. The law says that mere knowledge or discussion or generation of a crime in the mind of the accused is not sufficient to constitute an offence. The offence takes place with the meeting of minds even if nothing further is done. It is an offence independent of other offences and punishable separately. Therefore, the prosecution is required to establish the offence by applying the same legal principles which are otherwise applicable for the purpose of proving criminal misconduct on the part of the accused. Criminal conspiracy is generally hatched in secrecy thus direct evidence is difficult to obtain or access. The offence can be proved by adducing circumstantial evidence or by necessary implication. Meeting of minds to form a criminal conspiracy has to be proved by adducing substantive evidence in cases were circumstantial evidence is incomplete or vague. Therefore, the gist of the offence of conspiracy then lies not in doing the act or effecting the purpose for which 103 Spl.CC.342/2018 the conspiracy is formed nor in attempting to do them between the parties. Agreement is essential.
148. Law also says that criminal conspiracy is generally hatched in secrecy owing to which direct evidence is difficult to obtain. As stated supra, the offence can therefore be proved either by adducing circumstantial evidence or by way of necessary implication.
149. The essential ingredients of criminal conspiracy as stated supra are that there must be an agreement between two or more persons and that the agreement must relate to doing or causing to be done either an illegal act or an act which is not illegal in itself, but is done by illegal means. In this case, if the definition of criminal conspiracy is applied as discussed above, it can never be stated that accused have committed criminal conspiracy. Because none of the witnesses have spoken about criminal conspiracy. The very act of transportation of the iron ore is not, for which meeting of minds to commit criminal conspiracy is not proved in this case. No circumstance is brought on record that, 104 Spl.CC.342/2018 accused No.1 to 16 and 18 with deceased accused No.17 did conspiracy in the commission of crime and were succeeded in doing their illegal acts. Evidence so lead by the prosecution is very vague and it is hard to believe the story of the prosecution.
150. If the definitions of theft, receiver of stolen property, cheating and criminal conspiracy, discussed above are applied to the present facts of this case, though specific allegations have been made by the prosecution against all the accused persons, but none of the ingredients of the aforesaid offences has been proved by the prosecution beyond all reasonable doubt.
151. The transporters who have transported the iron ore never speaks of the violation of the MMDR Act as well as without DMG permit the said iron ore is transported etc. They have been declared as hostile witnesses. Nothing worth is elicited from the mouth of any of the witnesses. All the witnesses consistently spoken about transportation of iron ore from various mines and stock yards which have been passed through various check posts, right from Bellary to Belekeri Port 105 Spl.CC.342/2018 and at the Belekeri port, the Port authorities have verified all the documents and thereafter only, after confirmation about the legality of the said transport of the iron ore, have exported the said iron ore by issuing order 'let export'. None of the witnesses in this case have spoken any incriminating evidence against any of the accused persons. So, therefore, in the considered view of this court, if all these factual features coupled with the evidence spoken to by the witnesses as well as the law with regard to the offences levelled against accused persons are read and applied to the present facts of the case, prosecution has utterly failed to prove the offences made out against accused persons. Therefore, in this case doubt arises and that benefit of doubt must be extended to the accused persons. More so, on perusal of the records of this case, we find that the I.O., has not applied his mind during investigation. Simply, in a casual manner he has collected documents and has submitted the charge sheet. The vital witnesses have been turned hostile. He ought to have recorded the statement of witnesses being the mine owners or stock yardists, who could speak before the court about the 106 Spl.CC.342/2018 theft of iron ore from the respective mine heads or stock yards, etc. No such attempt has been made by the I.O. It is fatal to the case of the prosecution. Hence, I record my findings on the above point No.1 to 4 in negative.
152. Point No.5:- As a result of my foregoing discussion and reasons stated thereon, accused are entitled for acquittal. Resultantly, I proceed to pass the following:-
ORDER Acting under Sec.248(1) Cr.P.C., accused No.1 to 16 and 18 are acquitted of the charges leveled against them for the offences punishable U/Sec.379, 411, 420 r/w 120B of IPC.
Bail bonds of accused No.1 to 16 and 18 stand cancelled. They are set at liberty. (Dictated to the Judgment Writer, transcribed and typed by him, same is revised and corrected by me and then pronounced in the Open Court on this the 13th day of September, 2019) (RAMACHANDRA D. HUDDAR) LXXXI ACC & SJ, Bengaluru City (CCH-82) (Special Court exclusively to deal with criminal cases related to elected MPs/MLAs in the State of Karnataka) 107 Spl.CC.342/2018 ANNEXURE:
Witnesses examined by the prosecution.
PW-1 Sushil Samanth
PW-2 Sanjay
PW-3 S.Mallesh
PW-4 Prakash
PW-5 Shanmugha
PW-6 Arun Pawar
PW-7 Mahesh Biliye
PW-8 Yogesh Ananda Shetty
PW-9 Anand L.Idurkar
PW-10 A.Nagamohan
PW-11 Chandrashekhar Bhat
PW-12 D.B.Yuvuraja
PW-13 Vishwanath
PW-14 Manjunath.K.M
PW-15 G.Anantha Sena Reddy
PW-16 Ravindra Shivpur
PW-17 Manjunath.A.M
PW-18 Ramesh.H.G
PW-19 Kishore Kumar Jain
PW-20 Prasanna
PW-21 C.A.Chandrakath Dedhia
PW-22 Domrgos Fernandas
PW-23 A.Subhash Reddy
PW-24 Venkatesh.H.R
108 Spl.CC.342/2018
PW-25 Uday Kumar Raghuram
PW-26 Safeer Samad
PW-27 S.Venkata Reddy
PW-28 Muthuraj
PW-29 B.Nalla Reddy
PW-30 H.V.Niranjan
PW-31 Sampath Raj
PW-32 Prashanth Hadagali
PW-33 N.M.Muthuraj
PW-34 Prakash Rao
PW-35 Jagannath Goundar
PW-36 Basavaraj
PW-37 S.Lalith Kumar
PW-38 H.Basavraj
PW-39 C.Parameshwaran
PW-40 B.Nagaraj
PW-41 G.Manohar
PW-42 K.Katte Basappa
PW-43 Dada Kalandar
PW-44 K.P.Sreejith
Witnesses examined by the defence/accused. -- NIL Documents exhibited by the prosecution.
Ex.P. 1 Bill No.103/2010 (23 sheets)
Ex.P. 2 Bill No.111/2010 (7 sheets)
Ex.P. 3 Bill No.128/2009
Ex.P. 4 Bill No.55/2010 (23 sheets)
109 Spl.CC.342/2018
Ex.P. 5 Bill No.163/2010
Ex.P. 6 Agreement
Ex.P. 7 Outward statement
Ex.P. 8 Inward statement (5 sheets)
Ex.P. 9 Receipt memo
Ex.P. 10 Receipt memo
Ex.P. 11 Receipt memo
Ex.P. 12 Receipt memo
Ex.P. 12(a) Signature of Pw2
Ex.P. 13 Receipt memo
Ex.P. 13(a) Signature of PW33
Ex.P. 13(b to I) Bills, transport statement, bank statements, etc. Ex.P. 13(j) Signature of PW33 Ex.P. 14 Receipt memo Ex.P. 14(a to l) Bills, transport details, statement of accounts and relevant entry in statement of PW34 Ex.P. 15 Receipt memo Ex.P. 15(a to k) Signature of PW35, bills, transport details, account particulars, documents and relevant entry in statement of PW35 Ex.P. 16 Receipt memo Ex.P. 16(a to g) Signature of PW36, bills, transport details, account particulars, documents and relevant entry in statement of PW36 Ex.P. 17 Receipt memo Ex.P. 17(a) Invoice 110 Spl.CC.342/2018 Ex.P. 17(b) Details of transportation Ex.P. 17(c) /do/ Ex.P. 17(d) Statement of accounts Ex.P. 17(e) Signature of PW42 Ex.P. 18 Receipt memo Ex.P. 19 Receipt memo Ex.P. 19(a to h) Signature of PW37, bills, transport details, account statement, documents Ex.P. 19(i) Relevant entry of statement of PW37 Ex.P. 20 Receipt memo Ex.P. 20(a to d) Signature of PW38, bills, transport details, account statement, Ex.P. 20(e) Relevant entry of statement of PW38 Ex.P. 21 Receipt memo Ex.P. 22 Documents of PW3 Ex.P. 22(a) Signature of PW3 Ex.P. 23 Documents of PW3 (153 sheets) Ex.P. 24 Documents of Accused No.2 (full file of D.26) Ex.P. 24(a) Bulk permit Ex.P. 24(b) Permit 409 Ex.P.25 Form 'B' Ex.P. 26 Documents (full file of D.25) Ex.P. 26(a to c) Bulk permits Ex.P. 27 Covering letter 111 Spl.CC.342/2018 Ex.P. 27(a) Signature of Mahaveer Ex.P. 28 Application Ex.P. 28(a) Test report Ex.P. 28(b) Note sheet Ex.P. 28(c) Bulk permit Ex.P. 29 Covering letter dt.25.3.2014 Ex.P. 29(a) Signature of mahaveer Ex.P. 30 Covering letter dt.3.12.2014 Ex.P. 30(a) Signature of DDMG Ex.P. 31 Application dt.16.12.2009 Ex.P. 31(a) Statement of permits Ex.P. 31(b) Bulk permit Ex.P. 32 Letter dt.12.3.2010 Ex.P. 32(a) Application of Hanumamtha Rao Ex.P. 33 Letter dt.1.4.2010 Ex.P. 34 Permit dt.12.3.2010 Ex.P. 35 Letter dt.3.4.2010 Ex.P. 35(a) Bulk permit Ex.P. 36 Endorsement Permit dt.3.4.2010 Ex.P. 36(a) Application of Hanumantha Rao Ex.P. 37 Application dt.6.5.2010 Ex.P. 37(a) Endorsement Permit dt.3.4.2010 Ex.P. 38 Letter dt.2.8.2011 Ex.P. 38(a) Relevant documents/statement 112 Spl.CC.342/2018 Ex.P. 38(b) Signature of PW6 Ex.P. 38(c) Relevant documents Ex.P. 38(d) Signature fo PW6 Ex.P. 38(e) Copy of receipts Ex.P. 38(f) Export application Ex.P. 38(g) Copy of draft service report Ex.P. 38(h) Export application Ex.P. 38(i) Copy of receipts Ex.P. 38(j) Draft service report Ex.P. 38(k to m) Copy of documents Ex.P. 39 Covering letter dt.10.4.2014 Ex.P. 39(a) Signature of Rawal Ex.P. 39(b) Details of bulk permit Ex.P. 39(c) Signature of Rawal Ex.P. 39(d) Notification Ex.P. 39(e) Notification Ex.P. 39(f) Letter dt.3.3.2011 Ex.P. 40 Receipt memo Ex.P. 40(a) Signature of Pw14 Ex.P. 41 Certified copy of certificate of registration Ex.P. 42 Form No.1 Ex.P. 43 Copy of partnership deed Ex.P. 44 Letter dt.6.5.2014 Ex.P. 44(a to f) Relevant documents Ex.P. 45 Receipt memo 113 Spl.CC.342/2018 Ex.P. 45(a to o) Relevant documents Ex.P. 46 Letter Ex.P. 46(a to e) Relevant documents Ex.P. 47 Letter (receipt memo) Ex.P. 47(a to e) Relevant documents Ex.P. 48 Letter dt.3.11.2014 Ex.P. 48(a to h) Relevant documents Ex.P. 49 Receipt memo dt.15.5.2014 Ex.P. 49(a) Signature of PW15 Ex.P. 50 Copy of agreement Ex.P. 51-53 Ledger extract Ex.P. 54 Receipt memo Ex.P. 54(a) Signature of Pw16 Ex.P. 55 Bank statement Ex.P. 56 Account opening form Ex.P. 57 Receipt memo Ex.P. 57(a) Signature of PW17 Ex.P. 58 Transaction details Ex.P. 59 Transaction details Ex.P. 60 Tax invoice Ex.P. 61 Copy of bulk permit Ex.P. 62 Particular tax invoice Ex.P. 63 Particular tax invoice Ex.P. 64 Copy of ledger extract Ex.P. 65 Copy f seal register 114 Spl.CC.342/2018 Ex.P. 66 Copy of register Ex.P. 67-70 Extract of purchase register Ex.P. 71 Stock details Ex.P. 72 Copy of sales register Ex.P. 73 Copy of purchase register Ex.P. 74 Receipt memo Ex.P. 75 Copy of vat certificate Ex.P. 76 Copy of mining lease Ex.P. 77 Application, issue of permit Ex.P. 78 Bulk permit Ex.P. 79 Tax invoice Ex.P. 80 Tax invoice Ex.P. 81 Letter account Ex.P. 82 Bank statement Ex.P. 83 Receipt memo Ex.P. 84 Invoice Ex.P. 85 Statement of DMG permit Ex.P. 86 Articles of Association Ex.P. 87 VAT certificate Ex.P. 88 Copy of ledger account Ex.P. 89-90 DMG permit Ex.P. 91 Copy of ledger account Ex.P. 92 to 94 Copy of ledger account Ex.P. 95 Permission letter Ex.P. 96 Receipt memo 115 Spl.CC.342/2018 Ex.P. 97 Copy of vat certificate Ex.P. 98 Copy of certificate of incorporation Ex.P. 99 Copy of order Ex.P. 100 Bulk Permit Ex.P. 101 Bulk Permit Ex.P. 102 Statement of Truck Wire Ex.P. 103 Permit Ex.P.104 Certified Copy of letter Ex.P.105 Statement Ex.P.106 Statement of account Ex.P.107 Copy of Invoice (5 sheets) Ex.P.108 Copy of Invoice (4 sheets) Ex.P.109 Receipt Memo Ex.P. 110 Invoice Ex.P. 111 Invoice Ex.P. 112 Letter Dt:25-03-2014 Ex.P. 113 Authorized letter Ex.P. 114 Ledger account Ex.P. 115 Copy of purchase order Ex.P. 116 Tax Invoice Ex.P. 117 Certificate of Import and Export Ex.P. 118 Bank Statement Ex.P. 1l9 DMG Permit Ex.P. 120 DMG Permit Ex.P. 121 Copy of letter 116 Spl.CC.342/2018 Ex.P.122 Copy of letter Ex.P. 123 Permission letter Ex.P. 124 letter Ex.P. 125 Copy of Partnership Deed Ex.P.126 Copy of Mining lease Ex.P.127 Copy of VAT certificate Ex.P.128 Receipt Memo Ex.P.129 Authorisation letter Ex.P.130 Copy of purchase register Ex.P.131 Copy of contract Ex.P. 132 Copy of contract Ex.P.133 to Invoice Ex.P.151 Ex.P.152 Copy of Purchase order Ex.P.153 Invoice Ex.P.154 Invoice Ex.P.155 Copy of bill of lading Ex.P.156 Copy of shipping bill Ex.P.157 Copy of Draft survey report Ex.P.158 Port Clearance Certificate Ex.P.159 Bank Certificate Ex.P.160 Copy of Bank Statement Ex.P.161 Letter Dt:26-09-2009 Ex.P.162 Invoice Ex.P.163 Lease agreement 117 Spl.CC.342/2018 Ex.P.164 Lease agreement Ex.P.165 Notification Ex.P.166 Registration Certificate Ex.P.167 Letter dated 4-11-2014 Ex.P.167(a) Sign of PW-25 Ex.P.168 Account Opening Form Ex.P.169 Statement of accounts Ex.P.170 Letter Dt:01-12-2014 Ex.P.170(a) Sign of Satish Kumar Ex.P.171 Account Opening Form Ex.P.172 Account Statement Ex.P.173 Statement of account Ex.P.174 Letter dt:12-12-2014 Ex.P.174(a) Sign of PW-25 Ex.P.175 Account Form Ex.P.176 Statement of account Ex.P.177 Letter dt:14-08-2014 Ex.P.177(a) Sign of PW-26 Ex.P.178 Authorisation letter Ex.P.179 VAT Registration Form Ex.P.180 Copy of Pan Card Ex.P.181 Copy of IEC Certificate Ex.P.182 Statement Ex.P.183 Statement of details Ex.P.184 Statement of Details 118 Spl.CC.342/2018 Ex.P.185 Statement of Invoice Ex.P.186 Purchase Order Ex.P.187 Statement of PW-27 Ex.P.188 Statement of PW-28 Ex.P.189 Statement of PW-29 Ex.P.190 Statement of PW-30 Ex.P.190(a) Relevant entry Ex.P.191 Statement of PW-31 Ex.P.192 Statement of PW-32 Ex.P.192(a) Relevant entry Ex.P.193 Letter dated 4-03-2009 Ex.P.193(a) Sign of PW-40 Ex.P.194 Receipt Memo Ex.P.194(a) Sign of PW-1 Ex.P.194(b) Invoice Ex.P.194(c) Invoice Ex.P.195 Statement of PW-42 Ex.P.196 Receipt Memo Ex.P.196(a) Sign of PW-43 Ex.P.196(b) Invoice Ex.P.196(c) to 196(f) Transport Details Ex.P.196(g) Payment Details Ex.P.197 Statement of PW-43 Ex.P.198 Statement of PW-26 119 Spl.CC.342/2018 Ex.P.198(a) Statement of PW-26 Ex.P.198(b) Trip sheet Ex.P.199 FIR Ex.P.200 to 207 Files (permit) Ex.P.208 Receipt Memo Ex.P.208(a) to Ex.P.208(d) Relevant documents Ex.P-209 Ex.P-210 Letter dt:3-11-2014 Ex.P-210(a) Mining Lease Ex.P-211 Receipt Memo Ex.P-211(a) Receipt and documents Ex.P-212 Receipt Memo Ex.P-213 Booklet Ex.P-214 Booklet Documents exhibited by the defence/accused:- Nil List of Material Objects marked by the prosecution:--
Nil LXXXI ACC & SJ, Bengaluru City (CCH-82) Rrk.